NMT (Administration) - [2007] TASGAB 8

Guardianship and Administration Board
Hobart
NMT on the application of THE PUBLIC TRUSTEE
GAB No. XXXX
Neutral citation: NMT (Administration) [2007] TASGAB8
REASONS FOR DECISION
Anita Smith (President)
Lindi Wall (Member)
Majority decision:
Hearing: 26 September 2007

Administration – review of administration order – disabilities – incapacity – represented person in dysfunctional relationship with the Public Trustee – represented person made significant progress towards rehabilitation – ongoing need for an order
Guardianship and Administration Act 1995 s 6, 51, 52, 67, 73A

This is an application under section 67 of the Guardianship and Administration Act 1995 (‘the Act’) for review of an order made 16 July 2004 for the appointment of Public Trustee as administrator for NMT (‘the represented person’). This review arose by operation of law because section 52 of the Act deems that an order shall lapse upon the expiration of 3 years unless extended in a review hearing.

A Division of the Board in 2004 made an administration order for 3 years after it had found that the represented person had Asperger’s syndrome and had demonstrated incapacity to manage his funds. He needed an administrator, in the view of that Division, to assist with setting him up in Housing Tasmania accommodation, to control his payments of rental, electricity and telephone by direct debit and to pay him a spending allowance. At that time his wishes were not to have an order. The Board also noted that the represented person was in receipt of “large supplementation of income by parents and BI”.

The Board noted that “training in budgeting finances will be trialled and may be successful, hence the reports.” The Board indicated it would seek a report to be delivered at 6 months from Langford Services and others who were supporting him at that time. However no reports of any trials or financial training have been received.

On 13 July 2007 the Board convened the review hearing. The Board was comprised of two legal members, Ms Anita Smith (who also chaired the original hearing), Ms Elizabeth Dalgleish and community member, Dr Catherine Blackmore. That hearing was attended by:
The represented person,
Mr Andy Semmler from Disability Services,
Dr Goodwin Jones, a medical practitioner,
Mr Jamie Lawrence, a representative from the Public Trustee,
ED, a friend of the represented person
Mr Lee Perry, Investigation and Liaison Officer
The Board had been supplied with the documents listed in Appendix “A” and had access to the Board’s file. Legislative provisions relevant to this decision are listed in Appendix “B”.

The represented person, NMT, suffered a panic attack part way through the first review hearing date, so the matter was adjourned with an interim administration order made pursuant to section 73A continuing the administration. The Public Trustee, the represented person, his parents, his solicitor (at that stage Mr Ierino) and Dr Goodwin Jones were subsequently given an opportunity to make written submissions.

The represented person and the Public Trustee provided submissions. The review was reconvened on 26 September 2007. On that occasion a Board member, Ms Elizabeth Dalgleish, was substituted by Ms Lindi Wall. The hearing on 26 September 2007 was attended only by Andrew Semmler but Ms Krantz from the Public Trustee and Mr BI attended by telephone. BI indicated that he would advocate for NMT, who would not be attending, and that Mr Ierino was no longer NMT’s representative. The Board also contacted Dr Wojtek Majchezak by telephone but separately due to the limitations of the telephone system.

Evidence of Disability (Section 50(1)(a)):

All medical or psychological evidence of a disability is contained in the reports numbered between 2 and 9 of Appendix “A”.

According to an educational developmental psychologist, Vicki Bitsika, NMT was diagnosed with Asperger’s Disorder at 15 years of age. She reported a range of inappropriate behaviours resulting from that disability.

Dr Phil Reid examined NMT when he was 18 years of age (2001) at the request of his general practitioner, Dr Goodwin-Jones. At that time, he was living with BI although the report notes that he had threatened BI with knives. Dr Reid confirmed the above diagnosis and recommended a behavioural programme aimed towards independence.

Dr Morgan’s report dated 5 November 2003 includes information about difficulties in the relationship between NMT and his parents and with BI.

Dr Jeanette Goodwin-Jones indicated that she sees NMT in counselling sessions, whereas Dr Wojtek Majchezak prescribes NMT’s medication. She completed a pro forma Health Care Professional Report on 12 June 2007, supplying copious answers to questions. In response to the question: “Does the person have a disability?” she ticked “Yes” When asked to specify she indicated that NMT has a very good intellect but also does have (1) Borderline personality disorder, (2) questioned Asperger’s/Autism Spectrum (3) Panic attacks plus major anxiety including “germ phobia” and other obsessional traits (4) “Insomnia – major but tends to have now become nocturnal” (5) Social withdrawal/loneliness (6) Degree of post traumatic stress disorder and some other conditions. She reported that due to the above conditions he has considerably limited social skills.

Dr Wojtek Majchezak also completed a Health Care Professional Report on 12 July 2007 but the only disabilities he reported were Asperger’s syndrome and endogenous depression.

NMT is clearly uncomfortable with the diagnosis of Asperger’s syndrome and appeared to be equivocal about whether or not he had a disability.

We were satisfied that there is evidence of a long standing disability and an overwhelming body of opinion that NMT has Asperger’s syndrome which results in a restriction or lack of normal social abilities.

Evidence of Incapacity (Section 50(1)(b):

In 2004, Dr Greg Pitt stated: “I believe he (NMT) couldn’t handle his affairs responsibly to enable independent self care”. In relation to issues such as NMT’s ability to operate a bank account, pay bills, manage his money and budget, Dr Pitt stated: “The stresses related to the above could well precipitate stress upon him and therefore unwanted behavioural responses – aggression, self harm etc.”

Dr Assenheimer’s report in 2004 indicated that NMT’s eviction from various places of accommodation was evidence that he could not manage his funds.

Dr Goodwin-Jones’ answers to questions related to financial capacity in 2007 reported that NMT has a full understanding how to operate a bank account, pay bills, manage his money and budget, but as he lacks experience he would need to rely upon mature and responsible mentors in his social circle for support. She accepted that he needed guidance but she saw “removal” of his funds as overbearing and oppressive. When attending the first hearing, Dr Goodwin-Jones expressed approval for NMT’s graduated return to financial independence.

Dr Majchezak stated that NMT needs help and advice to make reasonable decisions in relation to his property, operating a bank account, paying bills and budgeting. He stated that NMT appreciates the nature and extent of his property similarly to an average person. As Dr Majchezak’s answers were somewhat equivocal, the Board telephoned him on 26 September 2007 during the review hearing. Asked how NMT would manage having complete control over his finances, he said “Well I think you will have troubles.” Dr Majchezak stressed that NMT is striving for independence but might find himself overwhelmed by it. He recommended a gradual introduction to financial independence. The Chair of the hearing put the following question to Dr Majchezak:

“Chair: One option would be to leave the administration order in place. Another option would be to leave the administration order in place but give directions to the administrator to loosen up some of NMT’s allowance and give him more responsibility over a period of time. The third option is to revoke the order entirely and he would be in control of all of his money.
Dr Majchezak: If I had to pick one of those I would pick the middle one and the reason for it is that I do believe that if – I of course cannot predict the future – but I do believe that if he was again not able to manage his affairs in a way he will rebel and sooner or later he will escape or go somewhere and it will be difficult to find him et cetera, et cetera. So, I don’t think that the first option is absolutely without any possible significant troubles for the man and for the people who need to be involved in looking after him. The second option, I think is the best, to loosen things and to see if he is able to manage and if he’s not then we can - hopefully it can be repaired and managed by other people.
If he, over the period of time, shows he is really capable of managing in a way then I would probably be inclined to believe that he should have freedom of being independent but I do not believe that this would be safe for him immediately to let him to do whatever he wants because I think that – I do not know what is your impression, but my impression and I have known this gentleman over the last – maybe five years – that he has acquired a different view on life in the last three years, I would say. For the last three years I can see the change. For the two years he was quite happy and content, coming here to grab his medication, et cetera, but in the last two or three years he has definitely changed. He acquired more knowledge about life and through the media or reading, et cetera, et cetera. So, he’s hungry for this new world and he’s hungry for independence but it might be too much for him because for many, many years he has not been given the opportunity to manage his affairs and I think if he was totally left for himself, he could not necessarily benefit from it. So, I think that a gradual release of all of this what you mentioned is probably the best option but I don’t know how that can be arranged really.

We took into account fears by NMT’s case manager from Disability Services, Andy Semmler, that if the Order was simply revoked that NMT would become homeless. Although we note that the case management relationship has been distant at best, Mr Semmler’s fears are consistent with NMT’s circumstances before the order was made.

We note NMT’s statement that there is no link between Asperger’s syndrome and an inability to manage finances. When the administration order was made in 2004, the Board stressed the need for NMT to be given opportunities to become independent in his financial decision making and sought a number of reports 6 months after that order to enquire whether NMT had progressed in financial independence. At that stage, the reports (such as they were) indicated that NMT had rejected many of the support services being offered to him and thus no progress was made. Yet in 2007, the same sentiments are being expressed by both of his doctors, that he requires education and social skills to manage his affairs.

NMT appears to the Board to lack an understanding of consequences of his behaviour. He continues to engage in behaviour that is inappropriate for independent financial management. For instance, by his own admission, NMT recently posed via email as the fictitious “JS” in order to attempt to get copies of statements from the Public Trustee – which were refused in any event due to privacy considerations.

The Public Trustee staff found the statements of the fictitious Mr Sinclair and this behaviour threatening. NMT’s inability to engage in appropriate negotiations with the Public Trustee stems from his disability. Dr Majchezak acknowledged that NMT lacks negotiating ability and needs experience of this. Dr Goodwin-Jones spoke of NMT as being unfortunately manipulative in order to get attention and help.

BI, as advocate for NMT in the second hearing, stated that he had witnessed NMT’s handling of his money when they lived together previously. He then also stated that their cohabitation ended after NMT was physically violent towards BI and his doctors advised him that contact with NMT was bad for his health. The Board, in 2004, noted that NMT was supplemented significantly by BI at that time. We therefore did not accord significant weight to BI’s statement.

The ability to make reasonable financial judgments is not only an arithmetical skill, but requires a degree of social skill (e.g. negotiating), even in the current environment where many simple transactions may be undertaken electronically. We shall address this issue further in respect of the need for an administrator, below.

We are satisfied that, by reason of his disability, NMT is incapable of making reasonable judgments in respect of matters relating to all of his estate. Despite the stated aspirations of the Board in 2004 that training should be offered in financial management, there is no evidence of any current formal or informal assistance in place to assist NMT with managing his estate other than the administration order. We are satisfied that NMT may be able to make reasonable judgments in respect of smaller or graduated parts of his estate with a view to progression to independence.

Evidence of Need for an Administrator (Section 50(1)(c))

NMT has a simple estate of receiving his income from benefits and an allowance from his parents to cover the usual kinds of domestic and entertainment expenses for a man his age. However there are some complex debt issues that the Public Trustee is currently managing.

According to the report of the Public Trustee dated 17 August 2007, debts currently listed with the Tasmanian Collection Service in NMT’s name are as follows:
XXXX

Some of these debts are disputed. As NMT points out, it is possible that there are many other debtors by the name of NMT and the possibility of one being wrongly attributed to him is quite high. The resolution of these debts will require a level of negotiation and social interaction both directly with the creditors and the Collection Service.

Further, NMT still relies upon an allowance from his parents to pay certain expenses. His mother still holds concerns about NMT’s ability to manage his own money. BI alleged that NMT’s mother has Munchausen-by-proxy syndrome and exaggerates NMT’s disabilities to bring attention to herself. The Board did not attach any weight this statement by BI as it was unsupported by any evidence and largely irrelevant. The Board notes however that there are still significant difficulties in NMT’s relationship with his parents and, as he is still reliant upon supplements from them, the role of the Public Trustee has provided a buffer to limit the amount of supplementation required or sought from them.

The Public Trustee report notes that conversations with NMT have proven, over the period of the administration to be very difficult.

“There have been times in the administration when NMT’s budget was so tight that even a small increase in expenses was impossible. When NMT’s requests were denied he interpreted this as an abuse of his rights by me personally. Attempts by me to explain the situation or to depersonalise it were not (sic) unacceptable to NMT. The last time NMT telephoned – on 2 July 2007 – it was to make a menacing threat against me personally.”

NMT described his relationship with the Public Trust officer as follows:

“I also “become unwell” when coerced into speaking with Sharon Krantz – I have been advised several times by receptionists at the Board to request a change in public trustee due to being unable to have a civil conversation with her – which severely impedes my ability to be aware of my expenses, as well as the Public Trustee not being able to act in my best interests at all time, which is one of their roles under the Act. I have tried to be civil with Ms Kranz but have met with opposition on her part to the point of my experiencing cardiac problems which have been suspected for some time now. … Sharon Kranz has refused to speak to me on one occasion and has become very argumentative with me on another, causing me to have a panic attack/cardiac episode.”

NMT also proposes that having the order means that he lives below the poverty line and that the order has been detrimental to his health, being prescribed 9 more tablets since the order. It is clear that NMT is desperate to have the order removed.

It is also clear that if the order were simply removed there would still be a range of complex financial situations that NMT must negotiate before he can live any more comfortably on his limited income. As he demonstrated in the above letter and in the hearing on the first occasion, NMT experienced any opposition to his line of argument as threatening and responded on occasions, including in the hearing itself, by having a panic attack.

Because of his disability and lack of social skills, he lacks the ability to enter into negotiations without risk to his physical health or behaving in an otherwise unproductive manner (e.g. creating the alias of KT or becoming threatening to those who deny him). Mere removal of the order, while issues in his estate require negotiation, would in our view expose NMT to a greater number of such scenarios and possibly render him back to a similar situation as at the start of the order, reliant upon greater subsidies from his parents and friends and needing assistance with basic payments of rent, electricity and telephone.

Given that the Board’s intentions on making the initial order – to expose NMT to training in financial management – has failed to take effect, the Board determined that such intentions need to be recorded in the orders to ensure that the administration of his estate is geared towards his eventual assumption of control.

Dr Goodwin-Jones referred to some mature role models who NMT has for friends and BI said that he would be available for financial advice to NMT. However, there was no formal or informal scheme for support proposed to the Board which was sufficient to satisfy us that safeguards for his best interests could be maintained without an administration order. Mr ED was also suggested as a person who could give support to NMT in this respect, but no further information was available as to what support ED could provide and how.

No alternative administrator was proposed. It is not necessary for the Board to make assessments of the suitability of the Public Trustee because of the construction of subsection 54(1)(a) being exempt from assessments under the provisions of subsections 54(1)(d) or 54(2). The Board notes that the Public Trustee has altered the case management of NMT’s file to ensure that no single officer has responsibility for the file, so the potential for NMT’s conflicts with Ms Krantz is reduced.

Noting the opinions of his current treating team, Dr Majchezak and Dr Goodwin-Jones, the Board is encouraged by signs of NMT maturing and being more responsible. In order to encourage that, it is important that he is given graduated responsibility for his affairs as reflected in the terms of this order.

We consider that, while allowing the order to lapse would reflect NMTs’ wishes, it is not in his best interests to do so for the reasons outlined above. Therefore, while an order is presently required, we believe that the construction of the new order promotes his freedom of decision and action in a rehabilitative but also protective environment.

THE BOARD ORDERS

That The Public Trustee 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.
That the administrator is to prepare a report in consultation with the represented person and deliver that report to the Board within 28 days detailing the following:
(i)a program of graduated release of control of the represented person’s affairs;
(ii)the system by which that program will be monitored;
(iii)the benchmarks by which the represented person’s success in managing his affairs will be assessed with reference to reports from other service providers if necessary.

That the administrator will implement that program after approval by the President.
That if the program is deemed to have failed the administrator must:
(i)report that outcome to the President;
(ii)resume full control of the represented person’s affairs.
That a review of the order be conducted at the expiration of 12 months.

That the order remains in effect to 25 September 2010.

Anita Smith Lindi Wall
CHAIRBOARD MEMBER
Guardianship and Administration Board
Hobart
NMTon the application of THE PUBLIC TRUSTEE
GAB No. XXXX
REASONS FOR DECISION
Catherine Blackmore (Member)
Minority decision

This was a three year Review of an Administration Order (No.1967) made under section 52 of the Guardianship and Administration Act 1995.

The Represented Person, NMT, is a single, 24 year old man who resides in a Housing Tasmania unit. His income consists of a disability pension. According to current Health Care Professional Reports (HCPRs) he suffers from depression, panic attacks, anxiety and insomnia. He is also believed to suffer from post-traumatic stress disorder and borderline personality disorder. There is a contested diagnosis of Aspergers Syndrome. His general practitioner of seven years, Dr Goodwin-Jones, describes his relationship with his parents as ‘dysfunctional’ including ‘aggressive outbursts from parents, restraining orders, etc’ over more than ten years.

Pursuant to section 52 of the Guardianship and Administration Act 1995 on 13 July 2007 the Board held a hearing to review the Administration Order. NMT became unwell at the hearing. The Board Ordered:

A second hearing was convened on 26 September 2007.

4.1DISABILITY
There are only two current Health Care Professional Reports available from Dr Jeanette Goodwin-Jones and Dr Wojtek Majchrzak. Both are General Practitioners. There is no current assessment by a qualified psychologist or psychiatrist. Dr Majchrzak stated in his written report that there was a need for such an assessment. Dr Goodwin-Jones similarly wished to refer NMT to Dr Wurth (Psychiatrist).
Dr Goodwin-Jones has known NMT for at least seven years. From her Report it seems clear NMT sees her for ‘counselling’ sessions and that Dr Majchrzak prescribes his medications. Dr Goodwin-Jones indicates ‘with respect’ that she believes Dr Majchrzak over-prescribes medications but qualifies that by noting that NMT is responsible with his medications.
In relation to diagnoses recorded in the files that can be considered under the Guardianship and Administration Act 1995 to affect ‘capacity’, both doctors agree that NMT suffers from:
·     Depression
·     Anxiety
·     Panic attacks, and
·     Insomnia.
The diagnosis of Aspergers Syndrome comes from dated reports from specialists - between 5 and 8 years old. Dr Goodwin-Jones questions the diagnosis of Aspergers Syndrome. Dr Majchrzak accepts that diagnosis but in his telephone interview with the Board on 26 September he stated that in his limited experience of Aspergers Syndrome that NMT’s case was ‘mild’. Dr Goodwin-Jones also considers he suffers from ‘borderline personality disorder’ and a ‘degree of post-traumatic stress disorder’ relating to his family’s treatment of him for over 10 years. According to Dr Goodwin-Jones his greatest ‘disability’ is his lack of socialization and some antisocial tendencies.
From the evidence presented NMT does suffer from conditions which, given the broad definition within the Guardianship and Administration Act 1995, can be construed as a disability.
4.2CAPACITY
The evidence of the current HCPRs was unequivocal both in writing and verbally that NMT has changed significantly in the past two years during which time he has learned to live relatively independently and has started to learn basic life skills. However, much of the written evidence regarding NMT’s alleged incapacity to manage his own financial affairs refers to events and occurrences in 2003/4 or earlier, that is over three years ago.
With regard to current evidence of NMT’s capacity to manage his own financial affairs/estate, Dr Goodwin-Jones notes that NMT has ‘a very good intellect’ and ‘extreme verbal/language skills’. Both HCPRs note that NMT understands the nature and extent of his property and the consequences of not paying bills; that he can manage his money reasonably well (he currently operates at least one if not two bank accounts). Both indicate that he needs ‘help’ or ‘advice’ regarding budgeting. Dr Goodwin-Jones believes NMT capable of making ‘reasonable’ decisions in relation to his property but that he is ‘very inexperienced’. Dr Majchrzak believes he needs ‘help and advice’ in this area. Dr Goodwin-Jones comments that NMT has had limited opportunity to ‘practice’ budgeting but that he has responsible mature-age friends who could give guidance and whom NMT actively seeks out as ‘role models’ and ‘mentors’.
Dr Goodwin-Jones comments in her report that NMT’s conditions, while they may be construed as antisocial, ‘do not preclude’ financial autonomy. Dr Majchrzak indicated in his telephone interview of 26 September 2007 that he thought NMT would benefit from an incremental move to financial autonomy. Friend BI stated that he had observed NMT managing funds well during the period 2001 to 2003 while he lived with him.
The Administration Order (No.1967) removed control of NMT’s limited income from him. For the past three years he has had no opportunity to learn budgeting skills. Section 57 (2) (a) of the Guardianship and Administration Act 1995 states that an administrator must act in the best interests of the represented person as far as possible ‘in such a way as to encourage and assist the represented person to become capable of administering his or her estate’. It appears from the evidence in the file and from verbal evidence that this has not occurred.
Written evidence of hearsay regarding fraudulent behaviour on eBay and a list of various debts attributed to a person called NMT by Tasmanian Collections Service, both reported by the Public Trustee, were found to be largely without foundation or irrelevant during the hearing of 26 September 2007.
On the basis of the above, I believe that NMT has the capacity to manage his own property and finances but with initial assistance.
This initial assistance could come from friends or other sources. Andy Semmler from Disability Services stressed at the hearing that the critical issue was whether NMT would ‘engage’ with that person or organization and respond. There is ample evidence in the files of the volatile and at times hostile relationship NMT has with the Public Trustee. Andy Semmler stated at the hearing of 26 September that his service had not had any contact with NMT since the end of 2006 as he would not ‘engage’ with them.
On the basis of the above I believe that NMT would only learn financial management skills with support from people with whom he will engage, that is, friends and mentors.

4.3 NEED

There is no current evidence that NMT cannot manage his limited finances, only conjecture that his lack of socialization and social skills will make it difficult.
Dr Majchrzak was asked to consider three options on the telephone interview of 26 September:
1.   a renewal of the Order
2.   a loosening up of the Order which gave NMT control of his finances over a period of time, and
3.   total control of his finances.
Dr Majchrzak replied that option 1 was ‘out of the question’. He indicated he thought NMT would revolt, move interstate to get away from the Order, or intentionally flout the Order. There is evidence in the file of all of this behaviour as a consequence of the previous Order. He considered option 3 ‘risky’ because although NMT is ‘hungry’ for independence and ‘the world’ he has not been given the opportunity to learn. He considered giving him full control of his finances over a period of time the safest option.
Dr Majchrzak’s remarks regarding option 1 are true of option 2 given that the Board will be using an Order to implement that strategy via the Public Trustee.
On the basis of the above I consider that while there is a limited need for assistance with budgetary planning, that such a limited need is insufficient for the renewal of an Administration Order using the Public Trustee.
4.4REPRESENTED PERSON’S WISHES
NMT has made clear repeatedly, both in writing and verbally, that he believes he is capable of managing his own finances and that he considers the Administration Order an infringement of human rights. He has indicated that he deeply resents the Administration Order because it has given control of his limited income to the Public Trustee. He has written of the anxiety, stress and ill health he suffers in his dealings with the Public Trustee.
BI stated that Dr Majchrzak had advised NMT not to attend the hearing on 26 September 2007 because of the likelihood of a panic attack or anxiety state. Consequently NMT has had neither the opportunity to respond to comments made at the hearing nor of hearing all the evidence presented.
4.5LEAST RESTRICTIVE ALTERNATIVE
The least restrictive alternative is to allow NMT to have full control of his limited pension income and to allow him to go to friends and mentors for advice and assistance as required. Alternatively an interim Order could be made for a period of a few weeks while regular payments of utilities, rent, etc were set up via Centalink. NMT would then have the opportunity of managing the residuum.
4.6BEST INTERESTS
Evidence was provided that NMT will not engage with the Public Trustee or Disability Services, that his anxiety and other conditions are exacerbated by the imposition of an Order, and that he appears to have a good network of mature friends and mentors, including Dr Goodwin-Jones and Dr ED. Dr Goodwin-Jones was overseas at the date of the second hearing and NMT wrote to the Board on 10 August 2007 that ED was experiencing ‘severe family hardship’ and was unable to assist Board investigations and enquiries. There is both written and verbal evidence of his capacity to manage his life in most financial areas except budgeting without assistance. NMT strongly believes that he is capable of managing alone and without an Order. On the basis of the above I consider his best interests to be served by not renewing the Order.

CONCLUSION
According to the current HCPRs, NMT has a disability but is also highly intelligent. There was no evidence presented to link his various ‘conditions’ with an incapacity to manage his financial affairs. Rather there was evidence presented that because of his lack of socialization he needed help and assistance over a limited period of time in the areas of budgetary planning and making reasonable decisions regarding money. Both his current health care professionals considered he should migrate to full financial control. Clear evidence was presented of a dysfunctional relationship with the Public Trustee, Disability Services and his parents. However, evidence was provided that he has a good circle of mature friends and mentors from whom he regularly seeks advice and support.
Evidence was provided that NMT would rebel against any renewal of an Order and that this would have negative consequences. NMT has made clear his belief in his capacity to manage his own financial affairs and made equally clear his distrust and abhorrence of dealings with the Public Trustee. On the basis of the evidence I do not believe a renewal of the Order is the least restrictive alternative nor is it in the in best interests of NMT.

Dr Catherine Blackmore
BOARD MEMBER
1 November 2007
APPENDIX “A”
List of Documents Before the Board:
Hearing 13 July 2007:
Applications:

Application for emergency Administration Order from M. Plaister, Disability Services dated 20.5.04

Medical/Psychological Reports:

Recommendations for Behavioural Management by Vicki Bitsika, Educational and Developmental Psychologist dated 15 March 2000
Report by Dr Phil Reid, Psychiatrist, dated 14 August 2001
Report by Jura Tender, Senior Clinical Psychologist, dated 3 May 2002
Report by Dr Stephen Morgan, Child and Adolescent Psychiatrist, dated 5 November 2003
Health Care Professional Report completed by Dr Greg Pitt 5 July 2004
Confidential report by Dr Elida Assenheimer, Clinical Psychologist dated 16 July 2004
Health Care Professional Report completed by Dr Jeanette Goodwin-Jones 12 June 2007
Unsigned Health Care Professional Report completed by Dr Wojtek Majchezak and faxed 12 July 2007

Public Trustee Reports:

Report by Public Trustee dated 13 July 2004
Annual report of administration by Public Trustee dated 8 August 2005
Annual report of administration by Public Trustee dated 1 September 2006
Annual report of administration by Public Trustee dated 28 June 2007

Correspondence etc:

Senior Investigation and Liaison Officer (SILO) file note dated 16.6.04
Senior Investigation and Liaison Officer (SILO) file note dated 30.6.04
Letter from Rebecca Thompson, advocate to Disability Services dated 12 September 2003
Letter from Rebecca Thompson, advocate to SILO dated 6 July 2004
Senior Investigation and Liaison Officer (SILO) file note dated 14 July 2004
Report dated 14 July 2004 by John McNamara, Disability Services, outlining involvement with the Represented Person
President file note dated 16 September 2004
Letter from GT (mother) dated 20 September 2004 to Board
Response from Registrar to GT dated 30 September 2004
Investigation and Liaison Officer (SILO) file note dated 1 December 2004
Letter to the Represented Person dated 1 December 2004
Investigation and Liaison Officer (SILO) file note – re conversation with Langford Services - dated 1.12.04
Email from Rebecca Thompson, advocate dated 2 December 2004
Emails from John McNamara dated 25 January 2005 and 6 July 2005
Letter from Blissenden Lawyers to Board dated 20 July 2006
Email in response to Blissenden Lawyers dated 20 July 2006
Email from Public Trustee dated 30 January 2007 forwarding email from the Represented Person
Series of emails forwarded to Board by Jamie Lawrence of the Public Trustee to the Board on 3 July 2007
Order and notes of decision dated 16 July 2004
Investigation and Liaison Officer (SILO) file note dated 6 July 2007

Hearing 26 September 2007:
The Board at the second hearing had all of the above materials plus the following:

Order made 13 July 2007 and notes of hearing and decision
Letter from Board to the Represented Person dated 16 July 2007
Response by the Represented Person received 10 August 2007
Letters from Board to parties dated 13 August 2007
Supplementary report by Public Trustee dated 21 August 2007 with enclosures
Hearing notices dated 5 September 2007

Appendix “B”

Provisions of the Guardianship and Administration Act 1995:

Section 3 Interpretation:

"disability" means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;

Section 6 Principles to be observed

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.

Section 51 Administration orders

(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.

(5) An order made under subsection (1) –

(a) may be made subject to such conditions and restrictions as the Board thinks fit; and
(b) may be expressed to take effect when the represented person is aged 18 years.

(6) The Board may exercise its powers under this section on an application under Part 4 of Powers of Attorney 2000.

Section 54 Persons eligible as administrators

(1) The Board may appoint as an administrator of the estate of a proposed represented person –

(a) The Public Trustee; or
…
(d) any other person, including the guardian of the proposed represented person, who consents to act as administrator if the Board is satisfied that –
(i) the person will act in the best interests of the proposed represented person; and
(ii) the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
(iii) the person is a suitable person to act as the administrator of the estate of the proposed represented person; and
(iv) the person has sufficient expertise to administer the estate.

(2) In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –

(a) the wishes of the proposed represented person, so far as they can be ascertained; and
(b) the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.

67. Review of orders

The Board may at any time –

(a) of its own motion; or
(b) on application by, or on behalf of, a represented person; or
(c) on the application of any other person –

hold a hearing to review a guardianship order or administration order.

68. Order after review

(1) On a review under section 67, the Board may vary or continue a guardianship order or administration order subject to any conditions or requirements it considers necessary or the Board may revoke the order.

(2) The Board may make such further orders as it considers necessary in order to give effect to an order made under subsection (1).

73A. Interim order on adjournment

(1) If the Board adjourns the hearing of an application under this Act, 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 a guardianship order or an administration order, make an interim order appointing –

(a) the Public Guardian as his or her guardian; or
(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 it considers appropriate in the circumstances.

(2) An interim order has effect for the period of the adjournment and any subsequent adjournment.

(3) This section does not prevent the Board from varying or revoking an interim order or from making a further interim order on any subsequent adjournment.

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Citations

NMT (Administration) [2007] TASGAB 8

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