KN (Administration)

[2013] TASGAB 1

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KN application for review of administration order

Neutral citation: KN (Administration) [2013] TASGAB 1

REASONS FOR DECISION

K. Barker (Chair)

Date of hearing: 11 January 2013

Admin order review – incapacity arising from disability - impact of polysubstance abuse – directions re maximising independence.

Guardianship and Administration Act, 1995 s. 6, 51, 67

1. KN has continuously been subject to administration orders since January 2001 with The Public Trustee appointed. The orders have been reviewed periodically, the last time in January 2010, with the Public Trustee appointed for a further three years until 7 January 2013, with full powers.  At that time the Guardianship and Administration Board (the Board) also directed The Public Trustee to meet with Campbell House staff to review KN’s weekly allowance and regime for provision of cigarettes, with a view to maximising KN’s independence in managing his financial affairs.

2. The administration order was reviewed in Hobart on 11 January 2013.  The following people were in attendance:

   ·     KN

   ·     Ms Yvonne Golder, Legal Aid Commission

   ·     Ms Danielle Lansdell,  The Public Trustee

   ·     Ms Fiona Whitton, The Public Trustee

   ·     Mr Kevin Emerton, RN, Tolosa Street

   ·     Ms Cheri Rowlands, Support Worker, Tolosa Street

   ·     Mr Lee Perry, compliance officer Guardianship and Administration Board.

3. I had before me the following documentation:

   ·     Annual reports from The Public Trustee dated 1 December 2009, 7 January 2011, 15 February 2012 and 13 December 2013, together with statements of accounts for the corresponding periods

   ·     An updated health care professional report prepared by Dr Mathew Fasnacht, dated 4 December 2009

   ·     A letter dated 17 December 2012 from Kristy Hill, clinical psychologist.

4. Section 51 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint an administrator of a person’s estate if it is satisfied that the person:

   (a) is a person with a disability; and

   (b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and

   (c) is in need of an administrator of his or her estate–

5. The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995:

   A function or power conferred, or duty imposed, by this Act is to be performed so that

   (a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted and

   (b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

   (c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

6. In reviewing an administration order under section 67 of the Act the Board will turn its mind to those same considerations before deciding whether to vary or continue an order under section 68 or to allow the order to lapse. The key issues for me to consider, then, are those set out in section 51.

Is KN a person with a disability?

1. In this case, there was no dispute that KN has a long-standing psychiatric disability associated with schizophrenia, and I accordingly find so as fact.

Is KN, because of that disability, unable to make reasonable judgements about his estate?

1. Kristy Hill’s report states that KN has had 30 hospital admissions with schizophrenia since his first admission in 1997 and that he has continuously resided in inpatient facilities since 2005.  The parties at the hearing, between them, confirmed that KN was transferred to the Wilfred Lopes Centre in September last year, and from there back to the Psychiatric Intensive Care Unit (PICU) at the Royal Hobart Hospital, and then to Mistral Place.  A few days prior to the hearing he commenced living at Mental Health Service’s facility at Tolosa Street. 

2. Ms Hill’s report states that there has been no change during the last three years to KN’s mental state, to his ability to make decisions regarding his finances, or to his ability to control his impulses.  She recommends that the administration order be continued.

3. Ms Golder submitted that KN has matured in the last decade and urged the Board to take that into consideration.

4. Ms Golder also submitted that KN’s lack of decision making capacity does not arise from his disability, rather it is symptomatic of his drug addiction.  KN stated that he has not had any drugs for the last 12 months.  Mr Emerton told the Board that KN’s access to cash funds has been limited so as to limit his access to illicit drugs, but that he continues to seek extra medications to ‘feed his habit’ and that he continues to seek alcohol as soon as he receives his allowance.  Ms Rowlands stated that she has known KN for a long time and drugs have always been a problem.

5. The evidence is that KN’s schizophrenia is unfortunately poorly controlled, with frequent and prolonged hospitalisations and a resulting reduced capacity for independent living. Ms Golder has correctly pointed out that many drug addicts will demonstrate poor financial skills and poor impulse control.  However the evidence in this case is that KN’s poor judgement and inability to make reasonable decisions regarding his finances result from his poorly controlled schizophrenia.  It may well be that his mental illness also results in a reduced capacity to make reasonable decision regarding his drug and alcohol use, and I don’t doubt that his drug use has a detrimental impact on his mental health, which in turn impacts on his decision-making capacity.  However it is unnecessary to tease out the relative and interacting impact of all these factors: I am satisfied that KN’s poor judgement and poor impulse control arise from his severe mental illness and that this leads to his inability to make reasonable decisions about his finances and estate.

Does KN need an administrator?

1. Ms Hill, in her report, states that KN’s administration order is an important part of his management plan in that it:

   “… limit[s] his access to polysubstances including alcohol, amphetamines, and cannabis.  KN has a strong alcohol and substance using history and his mental state deteriorates and risk to others increases with his use of substances”.

2. The evidence of Mr Emerton and Ms Rowlands is that attempts to give KN increased access to his funds have failed as he will immediately seek out alcohol or other drugs.  Ms Lansdell stated that following the direction of the Board issued at the time of the previous three-year review, The Public Trustee met with staff from Campbell House with a view to increasing the amount of pension to which KN had control, however this did not proceed due to KN’s propensity to spend any additional funds on drugs or alcohol.

3. KN has some $15,000 now held by The Public Trustee.  I asked him what he would do with these funds if the order were no longer in place.  He replied that he would take his younger brother on a holiday, purchase some music equipment so he could jam with his friends and buy some furniture for a house.  KN later said that he did not want access to his savings, but just wanted to control his pension.

4. KN has been living in Mental Health Service facilities for the last seven years or so, and has had an administrator for the last 11 years.  He has had limited opportunity due to the severity of his mental illness to develop skills in independent living, including those required for reasonable financial management.  I was satisfied that KN continues to need an administrator to manage both his savings and his day to day financial affairs, and to limit his access to drugs and alcohol.

KN’s wishes, his best interests and the least restrictive alternative:

1. KN clearly wishes to have control over his own finances, although not necessarily over his savings.  However I was not satisfied that would be in his best interests.  I believe his interests are best served by an administrator ensuring that he has funds for essentials such as food and board, that his accumulated cash reserves are available for his benefit (for example, if he realises his goal to obtain a flat for independent living), and that he has restricted access to funds for the purchase of drugs and alcohol that in turn lead to a deterioration in his mental health.

2. Whilst there was limited success as a result of the Board’s direction in the previous review, I decided to issue a similar direction on this occasion in a bid to focus all parties and support people on restricting KN’s freedoms as little as possible and maximising his independence.  KN is a young man, of high intelligence, with a debilitating mental illness.  He will need the opportunity from time to time to develop and test out his skills and capacities, even if that comes with some risk.  With an on-going administration order the opportunity exists for KN and his support team to trial efforts to maximise his independence in an incremental, controlled manner.

The Board’s Decision:

The Board was satisfied that KN

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect of his estate, and

• is in need of an administrator;

THE BOARD ORDERS

1. That The Public Trustee continue as the represented person’s administrator.

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

3. That the administration order remains in effect until 10 January 2016.

AND FURTHER THE BOARD DIRECTS that the administrator work with a representative of Mental Health Services and/or his accommodation providers to maximise his independence and control over his finances.

Kim Barker
MEMBER

Reasons Delivered:  25 January 2013