KMF (Emergency Administration) - [2010] TASGAB 17

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KMF – Application for the appointment of an emergency administrator

Anita Smith (President)

27 September 2010

Administration – Application for emergency order – what constitutes emergency circumstances – ordinary circumstances of an administration application do not become urgent circumstances because the applicant has delayed making an application
Guardianship and Administration Act 1995 sections 51, 65

On 20 September 2010 the Board received two written applications from Dr HT of the North West Regional Hospital, Spencer Clinic, seeking the appointment of an emergency guardian and an emergency administrator for KMF (‘the proposed represented person’) pursuant to section 65(2) of the Guardianship and Administration Act 1995 (‘the Act’). The application for guardianship was granted, the application for administration was not. A statement of reasons has been sought for the refusal of the latter application.
The application noted that the proposed represented person has a long history of paranoid schizophrenia and had not shown great improvement over six weeks in hospital. The applicant was concerned that the proposed represented person’s tenancy with Housing Tasmania may be jeopardised by the long hospitalisation and non-payment of rent, a Mastercard account, electricity and telephone accounts required payment and a taxation cheque (presumably a refund) needed depositing.
The relevant parts of section 65(2) of the Act state:
(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making … an administration order make an order appointing –
…
(b) The Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
…
(5) An order under this section –
(a) remains in effect for such period as the Board determines but not exceeding 28 days; and
(b) may be renewed but only once for a further period not exceeding 28 days.
The Act provides that a person should not become the subject of an administration order unless they have had notice of an application and had an opportunity to attend a hearing and be heard. Section 65 provides and exception to that entitlement where the Board considers it proper to do so, by reason of urgency.
The purported circumstances of urgency in the application were not convincing, as most applications for administration include such factors as evidence of a ‘need for an administrator’ for the purposes of section 51(1)(c) of the Act. The writer contacted the applicant by telephone to discuss this concern. The writer also indicated to the applicant that in the Board’s general experience, once Housing Tasmania becomes aware that an application for administration has been made, they generally do not proceed to evict a person but await the outcome of the application.
During the telephone conversation, the applicant agreed with the writer that none of the other matters appeared terribly pressing and concentrated the balance of the call on guardianship matters.
Following the notification to staff at the Spencer Clinic that the application had been declined, Ms B wrote the following email which was also read by the writer in a further consideration of the application:
“KMF has been an inpatient at Spencer Clinic Inpatient Unit, North West Regional Hospital (Burnie) since 15/08/2010.   He has a long standing diagnosis of Paranoid Schizophrenia and was admitted due to a relapse in his condition.   He is currently being treated under the Tas Mental Health Act 1996 on a Community Care Order that is due for review on 17/01/2011.
It is with concern that I have been informed that the GAB has rejected our application for an Emergency Administration Order and I am seeking clarification of that decision.
Briefly, KMF is not competent to make any decision regarding his finances. Due to this the following circumstances are now facing him:
1.       His rent is due. It is of the utmost importance that his tenancy be protected.
2.       Credit card payments are overdue and he will be incurring late fees and unnecessary interest charges.
3.       Telephone account is overdue.
4.       Electricity account is overdue. I have contacted Aurora who advises that only a Guardian (sic) can make any changes to his account. They further advise that it would be beneficial to him to have his electricity disconnected as he is incurring a daily charge for usage.
5.       He does not know the whereabouts of his main bank account card. Due to his paranoia he has refused assistance in gaining a new one.
6.       As with many people suffering from Schizophrenia, KMF is a smoker. He is picking up cigarette butts to smoke. Not only is this a health risk, but his dignity and reputation is being harmed as this is witnessed by other patients, visitors and staff. We have offered nicotine replacement therapy to no avail.
7.       He has limited clothing due to his belongings being in Hobart.
8.       He has no ability to buy personal products or snacks.
Of particular concern is that the above has resulted in considerable and undue hardship for his mother who is attempting to fulfil his needs out of her own pocket. KMF’s mother has already outlaid several hundred dollars while KMF has been in hospital and can ill-afford such. Her own health is at risk due to the stress of having her son relapsing and the added financial burden.
In keeping with the principle of ‘least restrictive’ and not wanting to invalidate his right of control, we left this application until it became absolutely necessary, hence the need for an Emergency application. It is envisaged that this will only be a short term need. It had been hoped that in re-starting his medication he would quickly recover and be able to handle his affairs. Unfortunately this has not occurred.
I respectfully request that you re-consider the application in light of the above.
Unfortunately, apart from the issue of his unhygienic smoking habits and a lack of funds for day to day expenses, the information largely repeated the information in the original application. It would seem a very extreme measure to impose an emergency administration order and deprive him of his right to a hearing just to curb some smoking behaviours which may be addressed in the short term by some other means.
Ms B’s penultimate paragraph of her email appears to suggest some misguided understanding of the principles in the Act and the operation of the law. Circumstances do not become urgent simply because an agency has waited too long (in this case 6 weeks) to take action.
Although the applicants now suggest that this is a serious and urgent issue, if the applicants had made an application for administration pursuant to section 51 at the time of the proposed represented person’s admission to hospital or shortly thereafter, the application would have been heard and determined by now. As at the date of writing this application, the Board has still not received an application for guardianship or administration for the proposed represented person.
The proposed represented person should not be deprived of his right to notice of a hearing and the possibility of attending that hearing to defend the application if he should so wish on the basis of the applicants’ lack of action or lack of understanding of the law.
Anita Smith
PRESIDENT