NBG (Administration)
[2019] TASGAB 15
•28 June 2019
CITATION: | NBG (Administration) [2019] TASGAB 15 |
HEARING DATE(S): | 28 June 2019 |
DATE OF ORDERS: | 28 June 2019 |
DATE OF STATEMENT OF REASONS: | 17 July 2019 |
BOARD: | Ms L Wall Mr J Otlowski Ms A McKenzie |
APPLICATION: | Application for Administration |
CATCHWORDS | administration - no current need - no relevant change since recent hearing |
LEGISLATION CITED | Guardianship and Administration Act 1995 (Tas), ss 50-51. |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
On 28 June 2019, the Guardianship and Administration Board (‘the Board’) heard an Application for Administration for NBG filed by Mr David Magor-Hampel, social worker from the Royal Hobart Hospital.
In attendance at the hearing were:
a.NBG;
b.B. H. (his wife);
c.Mr David Cocker (Legal Aid Commission, legal representative for NBG);
d.Mr David Magor-Hampel (Applicant);
e.Ms Rosemary Jurs (Public Trustee); and
f.Ms Bunty Targett-Seymour (Baptcare, care co-ordinator).
The Board found that there was no material change of circumstances since the hearing and dismissal of a previous application (the first application) for the appointment of an administrator on 10 May 2019. For the reasons set out on 29 May 2019, which were not challenged at the present hearing, the Board remained of the view that there was no current need for an administrator. Accordingly, the application was dismissed.
Legislation
Pursuant to Section 50 of the Guardianship and Administration Act 1995 (‘the Act’) an application was made by Mr Magor- Hampel for the appointment of an administrator for NBG.
Section 51 of the Act provides:
(1) If, after a hearing, the Board is satisfied that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made–
(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–
the Board may make an order appointing an administrator of that person's estate.
(2) In determining whether or not a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person's freedom of decision and action.
(3) 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) Where the Board makes an order appointing an administrator of a person's estate, the order is to be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.
Consideration of the Application
The application was made by the applicant less than one month after the first application. The reason for this application was that, following NBG’s discharge from hospital to transitional mental health accommodation, his accommodation fees had not been paid by his wife who was assisting him with his finances. There was further concern that there were insufficient funds available to him to secure private rental; that his joint ownership of the matrimonial home (from which he was still excluded by virtue of a family violence order) would preclude access to social housing and that he would thus be rendered effectively homeless at the end of the transitional period.
No further medical evidence was available since the hearing of the first application as no further psychiatric assessment had been completed since hospital discharge. The diagnosis of schizophrenia and depression made by Dr Yuen in his Health Care Professional Report (‘HCPR’) of 12 April 2019 therefore remained the same and the applicant advised that the condition, and persecutory delusions, were expected to be long term. The guardian, however, concurred with NBG and B. H. that there had been an observational improvement in capacity for financial decision making. NBG said that he felt he had the capability for his day to day spending and he was confident in making longer term financial decisions together with his wife as they have always done. This was uncontradicted.
B. H. provided written submissions and oral evidence that the failure to pay the fees was the result of a misunderstanding; that they had now been paid and that NBG had sufficient funds available to him to provide for his accommodation needs. This evidence was not contradicted. B. H. had recommenced contact with her husband and they were working towards his return to the matrimonial home if and when possible in consultation with his guardian. If that were not possible, rental options would be paid for. She reiterated the strong submission expressed at the hearing of the first application, that their marriage was a long one, that they had not separated, that their resources were jointly held and that she had always, and would continue, to support her husband and manage their joint finances effectively. She submitted that because of these factors, an administrator was not necessary.
Mr David Cocker endorsed the submissions of B. H. and submitted that NBG wanted his wife to continue to support him in managing his finances. He expressed concern that the appointment of the Public Trustee as administrator could interfere with the steps being taken, if possible, towards the restoration of the marriage over time within the family home or at least the resumption of separate cohabitation under the same roof.
The accounts for accommodation having been paid, there were no submissions arguing for the appointment of an administrator.
Decision
The Board is satisfied that there is no current need for the appointment of an administrator as NBG is able, with the support of his wife, to make necessary decisions regarding his finances. The Board accepts that this is the least restrictive option, in accordance with NBG’s wishes and in his best interests at his point in time with a view to the preservation of his marriage.
Accordingly the Board orders that: The Application for Administration is dismissed.
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