AL - [2016] WASAT 113

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AL [2016] WASAT 113

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 29 AUGUST 2016

DELIVERED : 19 SEPTEMBER 2016

FILE NO/S: GAA 2606 of 2016

MATTER: AL
Represented Person

Catchwords:

Guardianship and administration Administration Mental disability Mental illness Psychiatric condition Involuntary patient under mental health legislation Community treatment order Use of illicit drugs increases risk of relapse of mental illness Unable to make reasonable judgments in respect of matters relating to his estate Estate at risk Administration order made

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 69
Mental Health Act 2014 (WA)

Result:

Administration order made

Summary of Tribunal's decision:

AL, a 39 year old man, was first hospitalised with a mental illness in 2009.
At the time the Public Trustee was appointed the administrator of his estate pursuant to the Guardianship and Administration Act 1990 (WA).
In late 2011, the administration order was revoked on the basis that AL's mental illness was stable, he was compliant with treatment and he was assessed as having good insight and appropriate judgment.
In May 2016, AL was admitted to hospital after a relapse of his mental illness likely as a consequence of the use of illicit drugs.
Subsequent to his discharge from hospital under a community treatment order in June 2016, the hospital mental health team made an application for the appointment of an administrator.
AL had significant assets but very limited income. His income did not support the costs of maintaining those assets and his personal financial needs
AL's assets had increased since the previous administration order because he had received an inheritance. He was therefore exposed to a potentially greater loss than when the administration order was originally made.
The Tribunal found that AL's mental health was precarious, he had only recently suffered a significant relapse of his mental illness and at the time of the hearing remained an involuntary patient requiring treatment to be given under a community treatment order. He had limited insight into the effects of his mental illness on his cognition and he continued to use illicit drugs which increased the risk of relapse. AL also seemed overly sanguine on the impact on his estate if a further relapse of his mental illness occurred.
The Tribunal decided to appoint the Public Trustee as the administrator of AL's estate.
Given the necessary restrictions placed on AL by the making of the administration order and in expectation that he would continue to receive treatment for his illness, the review of the order was set for 12 months.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

Case(s) referred to in decision(s):

FS [2007] WASAT 202
GC and PC [2014] WASAT 14
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

AL is a 39 year old man who has a diagnosed mental illness.
His most recent hospital admission was from 16 May 2016 to 23 June 2016 (May 2016 admission).
An application for the making of an administration order (application) has been made by the hospital's mental health team pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
AL has been the subject of administration orders in the past.
On 4 November 2009, the Tribunal appointed the Public Trustee as the plenary administrator of AL's estate (2009 order). AL had been admitted to hospital after experiencing a psychotic episode upon which a diagnosis of schizophrenia was made.
The 2009 order included a direction to the administrator that AL, his family and his treating team be consulted at regular intervals in order to determine the level of control he should be permitted to exercise over his estate.
The 2009 order was reviewed by the Tribunal and on 20 October 2010, the Public Trustee was reappointed as AL's plenary administrator with the same direction as on the 2009 order, and adding that AL should be given periodic financial statements by the administrator (2010 order).
At the time the 2010 order was made the Public Trustee reported that AL owned a property subject to a mortgage which exceeded its value. He owed his parents about $23,000.
His only income was the net rental on his property (he was living with his sister at the time) as he was not eligible to receive a Centrelink payment. The Public Trustee was holding $6,500 in cash funds.
On 16 November 2011 the Tribunal revoked the 2010 order. The assessment of a hospital medical officer was that AL's mental illness was stable, that he was compliant with treatment and had good insight and appropriate judgment.
The application was heard on 29 August 2016. The hearing was attended by a representative of the mental health team (applicant), AL, JL (brother) and VL (sister).
The decision was reserved.

Relevant legislation

The primary concern of the Tribunal is the best interests of AL: s 4(2) of the GA Act.
In considering the application the Tribunal shall, as far as possible, seek to ascertain the views and wishes of AL as expressed, in whatever manner, at the time, or as gathered from AL's previous actions: s 4(7) of the GA Act.
Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of AL unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgements in respect of matters relating to all or any part of his estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to AL, the Tribunal must further determine whether he is in need of an administration order. If the needs of AL can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4) and s 64(1)(b) of the GA Act.
If the Tribunal decides that AL is in need of an administration order it must then decide what authority should be given to the administrator, who the administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 64(1)(c), s 64(1)(d), s 68, s 69 of the GA Act.
If a limited administration order is made, the order must place the least restriction necessary on AL: s 4(6) of the GA Act.

Evidence and submissions

The Tribunal has before it reports from a psychiatry registrar and senior social worker (applicant) of the hospital mental health unit from the May 2016 admission.
The Tribunal was also given the Discharge Summary of the May 2016 admission (Discharge Summary).
The Discharge Summary was prepared from the hospital notes and not by the treating doctor.
It is stated in the Discharge Summary that AL was brought to hospital by the Police after neighbours reported several weeks of odd and paranoid behaviour. AL was admitted to hospital as an involuntary patient under the Mental Health Act 2014 (WA) (MHA) on the basis of a relapse of his schizophrenia on a background of likely methamphetamine or other drug use.
Collateral history obtained from the family by the hospital team was that AL had a history of noncompliance with oral (antipsychotic) medication and in those times was at risk to himself and others (it was alleged that AL had previously set his apartment on fire). The family felt that AL needed supported accommodation and that he was not able to manage his finances when unwell.
The Discharge Summary states that AL's psychosis gradually began to improve when he was commenced on the antipsychotic medication, risperidone.
AL was permitted escorted leave from the hospital which he used appropriately but he was reported to lack insight into his diagnosis and treatment.
AL was discharged on a Community Treatment Order (CTO) (MHA) after a 39 day admission.
The psychiatry registrar confirms the diagnosis of schizophrenia. The registrar states that AL's mental illness is made worse when he is not compliant with his medication, when he uses illicit drugs, or when he is faced with 'psychosocial stressors'.
The psychiatry registrar opines that AL is incapable of making reasonable decisions in relation to his financial affairs. She states in her report:
Current mental state shows evidence of impaired executive function/planning, however this has improved with re-initiation of antipsychotic medication.
The psychiatry registrar states that she is unsure whether AL has the capacity to execute an enduring power of attorney.
In her report arising out of the May 2016 admission, the applicant states:
[AL] presented very well toward the end of his admission but in a discussion initiated by him relating to the management of his finances it became evident that he was not able to adequately process the information provided to him in order to reasonably make a decision on the matter. [AL] stated during this discussion that he is not concerned about the management of his money because he has plenty of it and can afford to blow a lot of money when he is not well. Prior to discharge [AL] made claims to be organising his affairs however it became evident that he remained disorganised in his information processing and behaviour, and delusional, grandiose thoughts persisted particularly in relation to his finances.
In her oral evidence the applicant states the view that although AL presents well, he does not have insight into his mental illness and he has grandiose ideas concerning the size of his estate and his ability to spend from the estate. AL is reported to exhibit paranoid ideas about family members when he is mentally unwell.
The applicant states that the use of illicit drugs by AL leads to a deterioration in his mental health.
The applicant reports that AL has expressed that he intends to make an enduring power of attorney and to appoint an uncle or cousin in Canada as attorney, despite the fact he does not have significant contact with them but that he trusts them more than his family in Western Australia.
The applicant proposes the appointment of the Public Trustee as administrator of AL's estate to minimise the risk to his income and assets due to his assessed impaired judgment.
VL states that when AL's mental health deteriorates he stops communicating with his family. She says that when AL is on treatment he maintains regular contact with his family which is occurring at the present time. VL states that AL has been getting progressively better but she remains concerned about whether he is paying his bills. She is also concerned that AL is at risk of being taken advantage of and reports that he became a director of a company which failed in a business venture.
VL states that AL's estate has been increased since the administration order was revoked in 2011 by the receipt of an inheritance.
VL says that she understands the CTO is due to expire on 25 September 2016 and she is worried what will happen after that time.
JL states that AL is prone to grandiose ideas and is at a greater risk of a deterioration of his mental health when using illicit drugs. JL is of the view that AL is also subject to psychosocial stressors such as maintaining his rental unit and a failed business venture which impacts on his mental health. JL states that AL has a fluctuating ability to manage his financial affairs.
JL states that AL has had periods of employment in the past in hospitality and information technology.
AL states that his estate comprises a unit in which he lives and a unit that he rents. The properties are unencumbered. He also has about $60,000 in bank funds.
AL says that his only source of income is the rental on one of his units which is set at $550 per week. He is not eligible to receive any Centrelink payment.
AL states that he lost $20,000 in a failed business venture to which he was referred by an acquaintance in New South Wales. He says he is investigating whether he will invest in vending machines which distribute food and drinks but otherwise states that he will need to find employment to meet his ongoing expenditure.
AL states that he has not used methamphetamine for over 12 months but does continue to use cannabis.
AL says that he sees his psychiatrist monthly and is given his medication by way of injection. He expresses concern at the side effects of the medication.
AL states that he has not squandered his estate and is not at risk of doing so. He submits that he is not in need of an administrator of his estate.

Discussion

I am satisfied that AL has a mental disability (s 3 and s 64(1)(a) of the GA Act). He has the diagnosed mental illness (psychiatric condition) of schizophrenia.
The evidence shows that AL is at ongoing risk of a relapse of his mental illness because of his use of illicit drugs and periodic noncompliance of his antipsychotic medication.
I accept this was the likely cause of AL's most recent admission to hospital (May 2016 admission).
I also accept that AL has limited insight into his mental illness as evidenced by him being discharged from hospital on a CTO.
Whether AL is in need of a continuing CTO to ensure compliance with his medication will, in the first instance, be a decision of his treating psychiatrist.
By his own admission AL continues to use illicit drugs.
I accept the evidence of the applicant (supported by the evidence of VL and JL) that despite his mental state stabilising during the May 2016 admission, AL has expressed grandiose and flippant ideas in respect to his estate.
AL has significant assets but very limited income. His income does not support the costs of maintaining those assets and his personal financial needs. Other than drawing down the balance of his bank funds, AL does not appear to have a convincing plan as to how to rectify that situation. He mentions an investment in vending machines but the most recent investment decision led to a loss of funds. He also mentions employment but it seems that he has not been fully employed for a lengthy time.
AL's assets have increased since the 2009 order and 2010 order because he has received an inheritance. He is therefore exposed to a potentially greater loss than he was when those orders were made on the basis that his decision making is impaired (albeit improving) as was assessed by the psychiatry registrar during the May 2016 admission.
On all the available evidence I am satisfied to the required standard that AL is presently unable to make reasonable judgments in respect of matters relating to his estate (GC and PC [2014] WASAT 14 at [36] and FS [2007] WASAT 202 at [104] citing XYZ (Guardianship) [2007] VCAT 1196).
AL's mental health is precarious, he only recently suffered a significant relapse of his mental illness and at the time of the hearing remained an involuntary patient requiring treatment to be given under a CTO (s 20 and s 21 of the MHA), he has limited insight into the effects of his mental illness on his cognition and he continues to use illicit drugs which increases the risk of relapse. He seems overly sanguine on the impact on his estate should a further relapse occur as evidenced by what he said to the applicant. As a consequence his estate is at risk.
For all of these reasons I decided that AL is in need of an administrator of his estate and that there is currently no less restrictive alternative to the making of an order.
I have decided to appoint the Public Trustee as the plenary administrator of AL's estate.
Given the necessary restrictions placed on AL by the making of the administration order and in expectation that he will continue to receive treatment for his mental illness, I will set the review of the order in 12 months.

Order

The Tribunal declares that [AL];
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,

and the Tribunal orders that:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administration order is to be reviewed by 13 September 2017.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER