KKU (Administration)

[2018] TASGAB 15

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

KKU (Administration) [2018] TASGAB 15

STATEMENT OF REASONS
for an Interim Order on adjournment

Rodney Lester (Chair)

Administration – capacity – less restrictive – best interests – adjournment – interim order – specialist medical advice
Guardianship and Administration Act 1995

1. The hearing was in respect of KKU, a 22-year-old man, who had recently had an admission to hospital for a psychotic episode. In the days prior to the hearing he had been discharged from a treatment order under the Mental Health Act. The application for administration was made by Ms Victoria Conway, a social worker at the Adult Community Mental Health Service. The applicant proposed that the Public Trustee be appointed administrator.

2. At the commencement of the hearing the processes that the Guardianship and Administration Board (the Board) would follow were outlined, and the criteria that needed to be established for appointment of an administrator were explained. The information and reports available to the Board were also detailed.

3. The hearing was held at the Magistrates Court in Launceston on Friday, July 27^th, 2018. It was attended by:

   ·the applicant Ms Victoria Conway,

   ·proposed represented person, (PRP), KKU,

   ·PRP’s father SU,

   ·PRP’s step mother NU,

   ·PRP’s brother UU

   ·Ms Emma Curbishley from the Public Trustee in Tasmania,

   ·Mr David Crocker, solicitor for the PRP from the Legal Aid Commission of Tasmania, who joined the hearing by telephone.

Disability – sections 3(1) and 51(1)(a)

1. The Board had a Health Care Professional Report, (HCPR), from Dr Sabhana Pande of the Launceston General Hospital. Dr Pande indicated that the PRP had a number of disabilities, and they were an acquired brain injury due to an inoperable benign brain tumour, a mild intellectual impairment, a psychiatric disability – first episode psychosis possibly drug induced, and epilepsy.

2. Whilst there was no view expressed that the PRP did not have a disability, Mr Cocker did express the opinion that perhaps the seriousness and extent of the PRP’s disabilities may have been overstated in the HCPR due to the fact that the PRP had been examined for the report whilst experiencing an acute episode of psychosis. The PRP and his family, however, were quite clear in their view that the disabilities were ongoing, having been evident for a considerable period of time. Given the evidence available to it, the Board was of the view that the PRP had a disability.

Incapacity – section 51(1)(b)

1. There were a number of issues around capacity that were discussed, and it appeared evident that the PRP had for some time had a limited ability to effectively manage his finances. His planning and reasoning skills were poor and both the Dr Sabhana Pande in the HCPR and the family expressed concern about the PRP’s susceptibility to external influences that could result in financial exploitation.

2. Whilst Dr Pande in her HCPR was comfortable to link the PRP’s disability with his impaired capacity, Mr Cocker was firmly of the view that there was insufficient evidence to do so. His opinion was that, due to the HCPR being completed during an acute phase of the PRP’s disability, it was not reasonable to extrapolate that any causal link between disability and incapacity would be ongoing.

3. Neither the PRP, nor his family, were supportive of Mr Cocker’s views on incapacity, indicating that the incapacity was long standing and that it was clearly associated with the disabilities. The Board had no evidence to support Mr Cocker’s opinion, and noted that his position seemed to be substantially different to that expressed by his client, however on the face of it his argument did appear to have some merit. Apparently the PRP had had some neuropsychological assessments done some time ago, when not suffering from an acute episode, however no one seemed to remember what conclusions, if any, were drawn from these assessments.

4. The Board was of the opinion that a current neuropsychological assessment, with specific reference to any link between the PRP’s disabilities and his capacity to make reasonable decisions with respect to his estate, would be of assistance.

Need – section 51(1)(c)

1. Both the PRP and his family were of the view that an administrator was required to manage the PRP’s finances. There was also agreement amongst the family, including the PRP, that an independent administrator such as the Public Trustee would be the most appropriate appointment. Concerns were expressed that if a family member were appointed it would place an unreasonable strain on the relationship between the PRP and that family member, and ultimately that would not be in the PRP’s best interests.

2. Again Mr Cocker’s opinion seemed to vary significantly from that of his client. His view was that there must be a less restrictive alternative to that of appointing an administrator, and that if the Board did not accept his argument on the capacity issue, it should not appoint an administrator in any event because of it’s duty to follow the least restrictive path available to it.

3. The Board, as always, was cognisant of it’s function under section 51(2) to ‘…consider whether the needs … could be met by other means less restrictive of the person’s freedom of decision and action.’ The Board is also restricted by section 51(3), which states that ‘The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.’

4. When there is more than one option available to the Board, and these options serve the best interests of the PRP equally, then it is clear that the Board should ensure that the least restrictive option is followed. If, however, different options are likely to deliver differing results for the PRP, then it should always be open to the Board to facilitate the more restrictive option where that is expected to deliver the best result.

5. In this instance there was no practical alternative proposed that would be likely to satisfy the PRP’s need for financial assistance. The Board was of the view that if the requirements for disability and resulting incapacity were met then it would be appropriate to appoint an administrator.

Section 73A

1. This section states in part:

   1.If the Board adjourns a hearing of an application under this Act and it considers that there may be grounds for making, in respect of a person, a guardianship order or administration order … then it may –

   a.Make an interim order appointing … the Public Trustee as the administrator of the person’s estate; and

   b.Make or give any related orders it considers appropriate in the circumstances.

   2.An interim order has effect for the period of the adjournment and any subsequent adjournment.

   The Board was of the view that the best course in this instance was to adjourn the hearing and seek further specialist medical advice on whether the PRP’s incapacity to make reasonable judgements about his financial estate arises from the PRP’s disability.  This further medical advice should allow a properly informed decision to be made on the application.

   The Board was satisfied there was grounds for making an interim administration order, and thus determined that the appropriate course of action was to make an order under section 73A appointing The Public Trustee as the represented person’s administration. The Board also ordered the administrator to arrange for the specialist medical report and facilitate some training for the represented person in the area of financial management to try and determine if there may be a less restrictive long term option to administration that could equally serve the best interests of the represented person.

The Board’s Decision

The Board being satisfied that there are grounds for making an interim administration order pursuant to section 73A of the Guardianship and Administration Act 1995 in respect of the represented person.

THE BOARD ORDERS

1. That the hearing be adjourned to a date to be fixed.

2. That pursuant to section 73A the Public Trustee is appointed as administrator of the represented person for the period of the adjournment and any subsequent adjournment or until the application is dismissed.

3. That the powers and duties of the administrator be those conferred by Division 4 of part 7 of the Guardianship and Administration Act 1995.

AND FURTHER THE BOARD ORDERS that the Public Trustee arrange for;

1. A Neuropsychology report with specific regard to any link between the represented person’s disability and his capacity to manage his estate.

2. The represented person to receive training and support for budgeting and financial management.