TJ – Application for the appointment of an administrator by Alcohol and Drug Services South
[2013] TASGAB 14
•26 July 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
TJ – Application for the appointment of an administrator by Alcohol and Drug Services South
TJ (Administration) [2013] TASGAB 14
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 16 July 2013
Administration – definition of disability – incapacity arising from insobriety not from disability
Guardianship and Administration Act 1995 s. 3, 51
XT (Administration) [2006] TASGAB 2
The Alcohol and Drug Service division of the Department of Health and Human Services applied for the appointment of an administrator for TJ on 25 January 2013. That application was listed for hearing on 15 March 2013 but adjourned because TJ’s legal representative was seeking further medical opinion. The matter was relisted for hearing on 16 July 2013 after receipt of that opinion and an opportunity for the applicant to consider the future of the application.
If, after a hearing, the Board is satisfied that a person in respect of whom an administration application is made (a) is a person with a disability, (b) is unable by reason of the disability to make reasonable judgments 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.
The applicant in this matter asserted that TJ required an administrator because he is homeless, spends large sums of money on alcohol and has accrued debts that he is unable to repay from his Newstart allowance. The application contained details of extensive debts to various companies. The application was accompanied by a report from psychologist, Dr. Matthew Treeby.
Dr. Treeby’s report indicated that TJ has an acquired brain injury resulting from alcohol use. His report attributed significant impulse control and planning deficits to an alcohol related brain injury. He noted that TJ is malnourished and has difficulty inhibiting impulses to consume alcohol. Dr. Treeby was of the opinion that TJ had declined in mental functioning since an assessment by Dr. John Fourez in 2011. Dr. Treeby’s report confirmed TJ’s poor living circumstances and precarious financial situation as outlined in the application.
TJ’s solicitor sought an updated assessment from Dr. Fourez who provided a report of that assessment on 9 April 2013. Consistent with the application and Dr. Treeby’s report, his report outlined TJ’s addiction to alcohol and the addictive behaviours associated with that. His written report concluded that:
“I am therefore of the opinion that TJ does suffer from a neuropsychological disability secondary to neurological impairment due to alcoholism.”
From Dr. Treeby’s report and Dr. Fourez’s report, the Board concluded that TJ is a person with a disability within the meaning of section 3 of the Guardianship and Administration Act 1995.
Dr. Fourez also stated:
“However, I am of the view that the main driver of TJ’s poor budgetary behaviour is his craving for alcohol, cravings over which he appears to have little control at this stage. This in turn predicts that TJ will continue to mismanage his affairs and that he will continue to incur debts beyond his capacity to repay. Should he achieve sobriety, I consider that his neuropsychological functions and his basic knowledge of financial transactions would more probably than not be sufficient to sustain decision-making capacity. In ability to control his drinking is likely to see his neuropsychological condition gradually deteriorate and so will his decision-making capacity.”
Dr. Fourez participated in the hearing by telephone. He confirmed that, for the purposes of the definition of disability in the Act, TJ has an abnormality of function because of his physiological addiction to alcohol and because of the early signs of alcohol related brain damage. However that abnormality does not exist to the extent that he is incapable of making reasonable judgments about his estate when sober. His poor judgments about his estate currently arise because of insobriety, not because of the existing abnormality.
Although they were consistent in many respects, Dr. Treeby’s report focused on TJ’s behaviours, whereas Dr. Fourez’s report gave greater consideration to the origin of his behaviours, which he saw as emanating from an addiction, not from a disability. Accordingly, Dr. Fourez’s opinion was more favourable to TJ. The applicant did not seek to put any further information before the Board with respect to TJ’s capacity to make decisions about his estate and indicated their agreement with Dr. Fourez’s opinion.
On the evidence before the Board, the Board was not satisfied that TJ’s disability renders him incapable of making reasonable judgments in respect of matters relating to all or any part of his estate. Accordingly, the application was dismissed.
In XT (Administration) [2006] TASGAB 2 the Board considered a very similar application. In that decision, the Board wrote:
“18. The Board has not ignored the statements made by X’s family at the hearing which echoed the written statement above from J N about the potentially life-saving benefits that the appointment of an administrator could have. It is absolutely tragic that there is no facility under Tasmanian law whereby a person who is firmly in the grip of alcohol and gambling addictions can access the provisions of Part 7 of the Guardianship and Administration Act 1995 without having a diagnosed disability and resultant incapacity.
19. Had it been satisfied on the questions of disability and incapacity, the Board would quite likely have made the appointment of an administrator to control, in his best interests, X’s spending on his addictions. It is important to note that that would be contrary to X wishes.”
Although there have been discussion papers circulated by the Department of Health and Human Services about this issue, no law reform has eventuated since 2006. Tragically, XT’s brain injury did progress to such an extent that eventually an administration application was successful and he remains under an administration order. Dr. Fourez’s opinion is that TJ will most also progress to that point unless his drinking abates.
Anita Smith
PRESIDENT
Reasons requested: 26 July 2013
Reasons provided: 29 July 2013
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