MMX (Review Administration)
[2018] TASGAB 34
•30 November 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
MMX – Review of Administration
MMX (Review Administration) [2018] TASGAB 34
Statement of Reasons
Board: Virginia Jones (Chair)
Sue Aylett
Elizabeth Clippingdale
Administration – capacity and need – PRP unable to appreciate immediate and long term consequences of decisions – continuation of Administration Order
Guardianship and Administration Act 1995
On Friday 30th November 2018 the Guardianship and Administration Board (‘the Board’) heard an application for review of an administration order for Mr MMX. The application was filed by Mr Andrew Saint, case manager for MMX from Community Forensic Mental Health Service.
The following persons attended the hearing:
• MMX, the Proposed Represented Person;
• Mr Andrew Saint, the applicant, Community Forensic Mental Health Service;
• Ms Rebecca Irwin, solicitor for MMX, Legal Aid Commission of Tasmania;
• Mrs Emma Curbishly, Public Trustee (Tas).The Board had the following documents before it:
• Administration Order made by the Board dated 15 April 2016;
• Application for Review of Order dated 7 September 2018;
• Health Care Professional Report from Dr Michael Fox dated 9 October 2018;
• ACAT documents dated February 2015;
• Medical letter from Dr Nicholas Stacey dated 11 February 2016;
• Health Care Professional Report from Dr Nicholas Stacey dated 16 April 2014;
• Public Trustee Report dated 7 March 2018;
• Statement of Account dated 29 October 2018.As a result of the hearing the Board was satisfied MMX is a person with a disability and is unable, because of his disability to make reasonable judgments in respect of matters relating to all or any part of his estate, and is in need of an administrator. The full details of the order appear at the end of this Statement of Reasons.
MMX’s solicitor, Ms Rebecca Irwin has requested a Statement of Reasons in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
When the Board assesses an application for review of an administration order it needs to be satisfied of the matters in section 51 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that the represented person, in this case MMX:
(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.The Board must also balance the principles in section 6 of the Act, which are:
(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.
Is the represented person a person with a disability?
In respect of MMX Dr Michael Fox provided a Health Care Professional Report to the Board dated 9 October 2018. Dr Fox reported MMX has a psychiatric disability (schizoaffective disorder) which has been evident for over 15 years. He also noted MMX has an intellectual disability. Both disabilities will impact him long term.
A Health Care Professional Report of Dr Nicholas Stacey dated 16 April 2014, and letter from Dr Stacey dated 11 February 2016 noted psychiatric disabilities, with there being no change in those disabilities from 2014 to 2016.
Ms Irwin, solicitor for MMX, did not challenge the diagnoses, and conceded disability.
The Board is satisfied MMX is a person with a disability within the meaning of the Act.
Is the represented person incapable by reason of the disability of making reasonable judgments?
In the report of Dr Fox noted above, it was indicated MMX has impairments in impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills.
Dr Fox reported that whilst MMX is aware of the amount of money he has in the bank, he has difficulty appreciating the effect on the future his decisions about real or personal property will have (and exaggerates his ability to make decisions).
The lack of appreciating the effect on his future of decisions made now appears to be a constant concern over time with the Health Care Professional Report of Dr Stacey from 2014 stating MMX’s disabilities may influence poor decision making for major financial decisions with long term consequences.
Importantly, Dr Fox stated MMX can manage day to day finances but only where they are simplified and structured, and has difficulty with major financial decisions because he has trouble with abstract/non concrete thinking.
The Board was satisfied MMX is incapable of making reasonable judgments in respect of matters relating to all or any part of his estate.
Is the represented person in need of an administrator?
MMX is 79 years old. He resides in supported accommodation in Newstead.
The Public Trustee has been appointed (and reappointed) as MMX’s administrator since October 2006.
MMX requested the applicant to make the application for review of administration because he was concerned about ‘time running out’, the period for review of the Administration Order being in April 2019 which he considered a ‘long time away’, and he wanted to gain control of his finances.
MMX wanted to gain control of his finances so he could buy a property ‘down the river’ to go kayaking and fishing.
Evidence at the hearing made it clear MMX understood the concept of buying a home (as he had previously owned 3 houses) but he had a very limited understanding of the costs associated with purchasing a property, and the ongoing costs and maintenance associated with owning a property.
The manner in which MMX spoke about buying a property ‘down the river’ illustrated what Dr Fox stated in his report about MMX having difficulty appreciating the effect on his future his decisions will have. There was little thought of how he would ‘live’ once he bought a property.
It was of concern to the Board that MMX did not seem aware of the implications of living and caring for himself.
Living ‘down the river’ does not seem a viable option for MMX for a number of reasons. MMX does not have a driver licence, nor does he have family or friends he could rely on to transport him if he required goods, or access to services.
Evidence was received at the hearing from MMX that he has lived in his supported accommodation for 9 years, and it was ‘quite alright’. He has his own room, he has friends, is well supported and close to the services he requires, eg he is in walking distance of shops.
At the hearing it was suggested MMX trial independent living by renting a unit or other property for a period of time. This would be facilitated by his current administrator, the Public Trustee. This idea was embraced by MMX, and it is hoped it can occur for him, if or when appropriate.
The Board was satisfied there is a need for an administrator.
Gifting Order
An order was sought by MMX to allow gifting to the value of $200 per annum. MMX wished to gift money to his sons for birthdays and Christmas. It was not contentious and appropriate for the order to be made.
Conclusion
After hearing an application for review of administration order in respect of MMX (hereinafter referred to as ‘the represented person’):
The Board was satisfied that the represented person
• is a person with a disability, and
• is unable by reason of the disability to make reasonable judgements in respect of his financial affairs; and
• is in need of an administrator.
THE BOARD ORDERS
That the Public Trustee (Tas) continue as the Represented Person’s Administrator.
That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
The Administrator is authorised to distribute gifts from the Represented Person’s estate to a maximum of $200.00 per year. Such gifts are subject to the Administrator’s discretion and are only applicable providing there are sufficient funds in the estate
That the order remains in effect to 29 November 2021.
Virginia Jones
Member
December 2018
0
0
1