Property Management Orders in the Mental Health Context: Protection or Empowerment?
Fleur Aileen Beaupert
La Trobe University - School of Law
University of Sydney - Faculty of Law
University of Canberra
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
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
Date posted: November 26, 2008