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http://ssrn.com/abstract=1306793
 
 

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Property Management Orders in the Mental Health Context: Protection or Empowerment?


Fleur Aileen Beaupert


Independent Researcher

Terry Carney


University of Sydney - Faculty of Law

David Tait


University of Canberra

Vivienne Topp


Mental Health Legal Centre

November, 25 2008

University New South Wales Law Journal, Vol. 31, No. 3, pp. 795-824, 2008
Sydney Law School Research Paper No. 08/138

Abstract:     
This article draws on fieldwork data from a study of Australian mental health tribunals to critically assess property management legislation for people with mental illness in the Australian State of New South Wales ('NSW'). It is argued that the NSW law is anomalous in requiring that consideration be given to making a property management order whenever making involuntary detention orders, and in erecting a presumption favouring such orders unless it is demonstrated that the person is capable of managing their finances. The article argues that this regime discriminates unjustifiably against people with a mental illness. While this discrimination is shown to be softened by the 'resistance' of workers undertaking its implementation 'on the ground', it remains problematic. The NSW law is shown to be at odds with various principles in the UN Disability Rights Convention 2006 (in force May 2008), in failing to ensure that administration orders: (i) apply for the shortest time appropriate and are subject to regular review by a competent and independent body; (ii) are proportional and tailored to the person's circumstances; and (iii) are made and implemented in a way which respects the rights and preferences of the person. Comparing the NSW law with general adult guardianship law, it is suggested that the appointment of property administrators for NSW mental health service users should principally be governed by guardianship laws, as in most other Australian jurisdictions.

Number of Pages in PDF File: 31

Keywords: mental health, property management orders, UN Disability Convention, presumptions of capacity, adult guardianship

JEL Classification: K10, K11, K30, K32

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Date posted: November 26, 2008  

Suggested Citation

Beaupert, Fleur Aileen and Carney, Terry and Tait, David and Topp, Vivienne, Property Management Orders in the Mental Health Context: Protection or Empowerment? (November, 25 2008). University New South Wales Law Journal, Vol. 31, No. 3, pp. 795-824, 2008; Sydney Law School Research Paper No. 08/138. Available at SSRN: http://ssrn.com/abstract=1306793

Contact Information

Fleur Aileen Beaupert (Contact Author)
Independent Researcher ( email )
No Address Available
Terry Carney
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
David Tait
University of Canberra ( email )
Law Faculty
Canberra, ACT 2601
Australia
Vivienne Topp
Mental Health Legal Centre ( email )
Melbourne
Australia
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