NN (Review Administration) - [2012] TASGAB 42

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NN – Review of Administration Order

Neutral Citation: NN (Review Administration) [2012] TASGAB 42

REASONS FOR DECISION

Anita Smith (President)

Dates of hearing: 11 October 2012, 7 December 2012

Administration – review of order – capacity to make reasonable financial judgments – whether the represented person derives any benefit from the order

Guardianship and Administration Act 1995 – s 51, 67

On 30 October 2009, the Board appointed the Public Trustee as administrator for NN (the represented person) for a period of three years. On 6 September 2012 the administrator applied for a review of that order prior to its expiry. In assessing an application for review pursuant to section 67 of the Guardianship and Administration Act 1995, the Board considers fresh evidence of whether the represented person is a person with a disability, whether her disability renders her incapable of making reasonable decisions about her estate and whether she is in need of an administrator.
The hearing was adjourned from the first date on 11 October 2012 because the represented person had retained but not given instructions to a representative from the Legal Aid Commission of Tasmania and because the Board did not have before it any recent medical information about the represented person’s disability and her capacity to make reasonable decisions about her estate. An interim administration order prevailed during the period of the adjournment.
When the hearing resumed on 7 December 2012 the following persons attended:
NN – represented person
Ms. Yvonne Golder – Legal Aid Commission of Tasmania
Ms. Amanda Ripper – Advocacy Tasmania Inc.
Ms. Katherine Williams – Community Mental Health Nurse
Mr. Edward Kempa – The Public Trustee
Mr. Lee Perry – GAB Compliance Officer
The represented person was represented at the hearing by both by a legal representative and by a disability advocate.
During the course of the hearing, evidence from Ms. Williams related to events that the Board had considered in respect of another application resulting in an emergency order for a different individual. The material was highly prejudicial about the represented person’s living environment and the Board offered the represented person the option of adjourning again and having the matter determined by a different Board member. The hearing was stood down while the advocate and legal representative explained the issues and the alternatives to the represented person. After a lengthy private discussion, the represented person indicated through counsel that she was content to waive any allegations of apprehended bias and wished to continue the hearing with the same Board member. The hearing resumed.
The Board received a report from Dr. K dated 15 October 2012 which states:
“NN has a severe and persistent mental illness with onset in her later adolescence and with associated lifelong impairments. Her diagnosis is schizophrenia; she is treated with depot intramuscular depot (sic) antipsychotic medication monthly and is case managed by an adult community mental health team. Her illness has been stable through at least the last year with no acute exacerbations or particularly prominent psychotic symptoms. As is the case with chronic schizophrenia the majority of her disability is from cognitive impairment and the so called ‘negative symptoms’ which among other things relate to impairments in decision making, planning, reasoning and motivation. These symptoms tend to accumulate and worsen over time, are not particularly amenable to treatment and cause the bulk of disability associated with schizophrenia.
Despite NN’s wish to have access to her pension she lacks capacity to manage her finances, this is a permanent disability which she is unable to understand. When I spoke with her about her finances she was aware of how much money she gets given by her administrator but had little knowledge of the bills that are paid for her. Attempts through the years of trying to assist her in autonomous control of her finances have been unsuccessful, often contributing to debt and homelessness. Most of her distress relates to her belief that significant portions of her pension is being withheld from her and access to it would greatly improve her quality of life including allowing her to travel internationally, this is unrealistic. She is more upset by poverty than lack of independent control of her finances and paradoxically self-management of her finances is likely to make this worse and more distressing for her.
NN is very close to a custodial sentence for recidivist shoplifting and failing to appear in court. She often reports that her shoplifting is related to stealing food because she is hungry. My understanding is that her shoplifting is not restricted to food items and also in not thought a direct result of her mental illness, however this is based on second hand information and I do not have access to the court reports etc.”
Counsel for the represented person offered no submissions with respect to the contents of this report.
While not contesting Dr. K’s report, the represented person’s advocates sought to persuade the Board that recent decisions made by the represented person with respect to obtaining private rental had demonstrated a capacity for reasonable decision making processes and the ability to undertake complex transactions. She has had eight known changes of address since the order was made three years ago.
Ms. Williams gave evidence that accommodation in the latest premises is less than optimal, noting that one of three residents at that premises has been stood over, including with threats of violence, for significant amounts of his money by the other resident (not the represented person). This was the evidence that the Board had considered in a previous unrelated application and it suggested that the environment at the new premises is volatile and dangerous. The represented person’s advocates accepted that their assertion that the new housing arrangement was evidence of good decision making was undermined by Ms. Williams’ evidence and did not press that argument. In any event, the significant number of changes of address the represented person has had undermined the assertion that the latest premises brings with it any significant new benefits to her quality of life or the evidence of improvement in the quality of her decision making and transactional abilities.
The Board accepted Dr. K’s report as uncontested evidence that the represented person is a person with a disability and is incapable of making reasonable judgments about her estate.
At the time the first order was made the represented person had significant debts and outstanding fines and no means to pay them. The debts appear to now be paid due to the intervention of the administrator, but she still has outstanding fines. Mr. Kempa gave evidence that the administrator’s role had changed from time to time according to where the represented person is living and the arrangements for payment of rental, allowances and vouchers. He noted that she periodically runs out of funds especially when she manages cash directly. Ms. Williams and Mr. Kempa agreed that the major benefit of the administration order is that her rent is consistently paid. The presence of the order has not stemmed her accumulation of fines; a total of $8640.38 owing in Tasmania and Queensland.
The Board explored with the witnesses whether the presence of an order has any actual effect in the represented person’s life and whether, in the absence of an order, she might actually benefit from the small increase in funds that would eventuate from not paying commission and fees to the Public Trustee. The represented person and her representatives emphasised her capacity to meet fine payments and rental through direct debit or Centrepay arrangements. They contended that, as she is very poor and has set commitments, there is little benefit to her in having an administrator.
Ms. Williams expressed concern that the pooling of funds in the current share house would most likely jeopardise the continuation of Centrepay or direct debit arrangements in the absence of an order, leaving her vulnerable to further action on the fines (such as commitment) and potential homelessness. Evidence from the represented person that she carefully spends her funds on quality food at the supermarket was undermined by evidence from Ms. Williams that she has noted a reliance on take-away foods and the use of alcohol in the household and that the represented person is often contacting the case manager saying that she has no food or needs money for food.
On balance, the Board was of the view that the represented person continues to be in need of an administrator to ensure that she has money reserved for payment of rental and to maintain the payment of her fines. This is also consistent with Dr. K’s report.

Conclusion:

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 her estate; and
•is in need of an administrator

THE BOARD ORDERS

That The Public Trustee continue as administrator of the estate of the represented person.
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 order remains in effect until 6 December 2015.

Anita Smith
PRESIDENT
Statement of reasons requested: 2 January 2013
Statement of reasons delivered: 3 January 2013