NHC (Review Administration)

[2014] TASGAB 14

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

NHC – Application for review administrator by DEPARTMENT OF HEALTH AND HUMAN SERVICES

NHC (Review Administration) [2014] TASGAB 14

REASONS FOR DECISION

Colin McKenzie (Chair)
Grant Kingston (Board member)
Mary Davies (Board member)

Date of hearing: 29 May 2014

Administration – review of order – onus of proof of incapacity

Guardianship and Administration Act – s.51, 67

Application

1. This is an application made by the Public Trustee for review by reason of the impending expiry of an order by which the Public Trustee was appointed the Administrator for NHC on 17 June 2011.

2. The represented person is a 60 year old woman who lives independently in her private home.

3. The application was received on 12 May 2014 and was heard on 29 May 2014 in Burnie.

4. The represented person objected to the continuation of the administration, wishing to have full control of her estate.

5. An employee of the Public Trustee, NHC, her partner SK, and two employees of Mental Health services providers participated in the hearing.

6. The grounds for the application were;

   a.That NHC has Chronic Paranoid Schizophrenia which;

   i.Is static with no improvement expected

   ii.Impaired her capacity to;

   1.Comprehend her financial affairs

   2.Make decisions about her estate

   3.Engage in planning and reasoning

   4.Initiate action in response to financial demands and issues

   5.Manage adverse influence of third parties.

7. The Administrator contended these impairments exposed NHC to the risk of homelessness.

8. The application was supported by a Health Care Professional Report (HPCR) in the required form and completed by the psychiatrist who had been treating NHC for the two months preceding the date on which it was completed, 24 April 2014.

9. The HPCR contained evidence of examples of circumstances in which the impairments impacted on the management and security of NHC’s estate including, home maintenance needs not being attended to, the purchase of a new washing machine sold a week later, the sale of other items at a considerable loss, and the inability to buy a towel.

10.The Applicant’s estate includes a residence owned by NHC valued at $145,000.  The Administrator gave evidence of having brought rates arrears up to date, and having arranged for evaluation and costing of substantial and urgent maintenance requirements including roofing, windows fascias and plaster, fencing and electrical work.  The Public Trustee said that NHC needs new spectacles, that he knew of instances of purchased items being pawned shortly after purchase and that there had been the need for NHC’s case manager to have police assist in the removal of people who were living in NHC’s shed in unsuitable circumstances.

11.NHC and her partner gave evidence that she felt secure with money, and working closely with her case manager, was able to manage her estate.  She said the Administrator took too long to process requests for funds and as a result she had to spend grocery money to buy clothing. 

12.NHC did not contest the specific evidence contained in either the HPCR or given by the Public Trustee in its application and in oral evidence to the Tribunal.

13.There is no onus on NHC to prove her capacity to manage her estate.  It is for the Applicant to provide, or for the Board in the exercise of its powers to be in possession of evidence sufficient for the Board to be satisfied that NHC’s circumstances meet the requirements in the Guardianship and Administration Act which protect the independence and freedom of decision and action enjoyed by people who encounter periods of disability, incapacity and need.  However the evidence given by NHC and her partner did not cause the Board to doubt the opinions expressed in the HPCR that NHC’s disability, incapacity and need for an administrator continue to warrant the appointment of an administrator under the Act.

Evaluation

1. The Board is satisfied that NHC is a person with a disability, being Chronic Paranoid Schizophrenia, and is by reason of that disability, a person who is unable to make reasonable judgements in respect of matters regarding her estate. 

2. The Board accepts that NHC needs an administrator to manage her estate.

3. The Board was not presented with any evidence of, and did not identify any less restrictive alternative to the orders set out below, which would meet the needs resulting from NHC’s incapacity.

THE BOARD ORDERS

1. That The Public Trustee continue as administrator of the estate of the represented person.

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 order remains in effect until 28 May 2019.

COLIN MCKENZIE   GRANT KINGSTON          MARY DAVIES

DEPUTY PRESIDENT  MEMBER  MEMBER

1 August 2014