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

University New South Wales Law Journal, Vol. 31, No. 3, pp. 795-824, 2008

Sydney Law School Research Paper No. 08/138

31 Pages Posted: 26 Nov 2008  

Fleur Aileen Beaupert

La Trobe University - School of Law

Terry Carney

The University of Sydney Law School

David Tait

University of Canberra

Vivienne Topp

Mental Health Legal Centre

Date Written: November, 25 2008

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.

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

JEL Classification: K10, K11, K30, K32

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: https://ssrn.com/abstract=1306793

Fleur Aileen Beaupert (Contact Author)

La Trobe University - School of Law ( email )

Melbourne
Victoria, 3086
Australia

HOME PAGE: http://www.latrobe.edu.au/law

Terry Carney

The University of Sydney Law School ( email )

New 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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