BJS
[2009] WASAT 246
•14 DECEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BJS [2009] WASAT 246
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 9 JULY 2009
DELIVERED : 14 DECEMBER 2009
FILE NO/S: GAA 1253 of 2009
BETWEEN: BJS
Represented Person
Catchwords:
Guardianship and administration - Administration - Fluctuating mental illness - Mental disability - unable to make reasonable judgments in respect of matters relating to all or any part of his estate - Estate consisting of cash funds - The need for protection - Administrator to make decision in the person's best interests - The balance between autonomy and protection - Administration order made
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b)(iv), s 64(1), s 64(1)(a), s 68, s 70, s 84, s 90
Result:
The order for administration is confirmed
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
FS [2007] WASAT 202
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
BJS is a 42yearold man with a diagnosis of a mental illness (bipolar affective disorder). He has been the subject of an administration order under the Guardianship and Administration Act 1990 (WA) since March 2007.
At the most recent review of the order, the man asked that it be revoked and that he be allowed to control and manage his finances.
The man's estate consists of an amount of cash funds of $350,000 deposited with a financial institution and his entitlement to the disability support pension.
The psychiatrist (Dr PK) who had been treating the man for an extended period said that in his view the man's estate was at risk because his bipolar illness included a manic phase which could lead to excessive and irrational spending. The psychiatrist stated that the course of the man's illness meant that further manic episodes were inevitable.
The man did not accept that he suffers from bipolar disorder and said that he had suffered from depression that arose from his life circumstances.
The Tribunal decided to continue with the order for administration on the basis that the need for protection was not displaced by the man's wish to resume the management of his estate.
Background
BJS is a 42yearold man with a diagnosis of a mental illness (bipolar affective disorder).
On 22 March 2007, his brother was appointed his plenary administrator pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act). The order was set to be reviewed in five years.
The application for an administration order had been made whilst BJS was in hospital and after he had been admitted to a mental health unit in a psychotic state. The treating psychiatrist at the time described the condition of BJS as manic, with grandiose delusions and disorganised thinking. He was considered to be vulnerable to financial exploitation. The treating psychiatrist expected the illness to fluctuate over time but said the prognosis could be favourable if BJS abstained from the use of illicit drugs and alcohol.
At the time the administration order was made the estate of BJS consisted almost entirely of cash funds of $350,000.
In September 2008, BJS sought a revocation of the administration order on the basis that he could manage his own finances. By the time of the hearing for review of the order on 3 November 2008, BJS had suffered a relapse of his illness and had been admitted to hospital. His treating psychiatrist (Dr PK) attended the hearing and gave evidence that BJS had become manic with grandiose ideas about the use of his funds. Dr PK said that for a person with bipolar disorder a relapse of the illness increased the risk of further relapse.
On 3 November 2008, the administration order made on 22 March 2007 was confirmed.
In December 2008, BJS' brother made an application seeking to be discharged from his role as the administrator of the estate of BJS.
At the hearing to consider that application held on 13 January 2009, BJS said, relative to his admission to hospital in late 2008, that he had become very anxious due to stressors arising from his accommodation. He had taken on rented premises and had entered into a sublease with another person to reduce his rental cost but the sublessee had not paid his share of the rent and had not maintained the premises. The resultant stress had led BJS to become unwell for which he was hospitalised.
At the hearing on 13 January 2009, the Tribunal revoked the order made on 3 November 2008 and appointed the Public Trustee as the plenary administrator of BJS' estate.
The order was set to be reviewed in six months and that review is the subject of this decision and reasons.
The hearing of the review was held on 9 July 2009 and was attended by BJS and the psychiatrist, Dr PK.
Relevant legislation
Under s 90 of the GA Act, upon review of an administration order, the Tribunal may, as it considers necessary in the best interests of the represented person (relevantly the person for whom the administration order has been made), confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it.
Before it can make an administration order, the Tribunal must be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate and is in need of an administrator (s 64(1) of the GA Act).
Mental disability is defined to include dementia, acquired brain injury, psychiatric illness and intellectual disability (s 3 of the GA Act).
The determination of capacity and need is made subject to the principles of the GA Act as stated in s 4. They are, relevantly, that the primary concern of the Tribunal shall be the best interests of the person; that every person shall be presumed capable of making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal; that an administration order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action and, in considering any matter relating to the person, the Tribunal shall, as far as possible, seek to ascertain the view and wishes of the person.
If an administrator is to be appointed, the Tribunal needs to be satisfied that the proposed appointee will act in the best interests of the person and is otherwise suitable to act as administrator of the person's estate. In this determination, the Tribunal shall take into account, as far as possible, the compatibility of the proposed appointee with the person (and with the guardian of the person, if one is appointed), the wishes of the person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator (s 68 of the GA Act).
The evidence of Dr PK
Prior to the hearing Dr PK provided the Tribunal with a report in which he states that when unwell, BJS is at risk of overspending and has a tendency to irrational decisionmaking influenced by his affective symptoms.
In his oral evidence Dr PK states that BJS had a long history of anxiety and depressive symptoms before a formal diagnosis of bipolar affective disorder was made in February 2007 (about which BJS disagrees) (see below). In February 2007, BJS was first admitted to hospital with a manic episode and that was followed by a depressive episode in September or October 2007 which led to a serious medication overdose. Most recently, he was hospitalised with a manic episode in late 2008.
Dr PK states that from the end of 2007, BJS was quite well and was not being prescribed any medication. He was being monitored by the mental health team and there were plans to discharge him from further mental health involvement when, towards the end of 2008, he started to become unwell and was hospitalised.
Dr PK states that BJS' illness is episodic in nature incorporating periods of mania and depression. Dr PK is of the view that given BJS has had a number of relapses the likelihood is that he will have further relapses. Although BJS has not had a relapse since December 2008 and he is not being prescribed medication, Dr PK states:
There will be a relapse. No-one can be sure how long that will happen, but once [BJS] gets into his hypomanic or manic episode, then there will be a high risk of mismanaging that fund, that huge amount of fund that he has got. That risk is there, according to my opinion. (T:4, 09.07.09)
When asked what are the typical symptoms of a manic episode, Dr PK states:
A manic episode, it starts with some biological problems. There's sleep disturbances, there's lack of sleep, there's increased energy levels, there's a lot of big planning, lots of thoughts come to the patient's mind that they want to do this, they want to spend money. So there's excessive spending of money. There could be a lot of impulsive, risk-acting behaviours, like there could be an increase in drug use when they're in that phase, all the risk-acting behaviours, sexual inhibitions, spending excessively and impulsively, taking more drugs. Those kind of risks are there. (T:8, 09.07.09)
…
Most of the bipolar cases, there is no (indistinct) episode symptoms. So when the relapse comes, it comes full-blown, and it can relapse within a few days. Within one to two weeks, one can go from completely normal to completely abnormal. That's the risk which is always there with the bipolar. (T:8, 09.07.09)
Dr PK distinguishes between the manic and depressive episodes of a bipolar illness by the degree of insight a person might have when either of these conditions manifest. With depression, a person will have an understanding of what they are experiencing whereas with a mania attack, the first casualty is the person's insight into their behaviours.
The evidence of BJS
BJS states that in early 2007 he was involved in a motor vehicle accident and that it was a miracle he survived.
… my brother took me to hospital, and because I was so sort of wound up and excited, they took it as an episode. For me it wasn't an episode, but in amongst it, I spent the next six months on all sorts of medications and then just went to pieces on that and attempted to kill myself. (T:9, 090709)
When asked whether he accepts that he suffers from bipolar affective disorder, BJS says that he accepts that he has had a history of depression and believes that the depression is connected with a relationship of ten years he had with a person whom he married (but from whom he has separated) and with whom he had a child.
BJS says that he was prescribed anti-depressant medication during a period of the relationship but not before, so he takes the view that he made a wrong choice of partner.
BJS says that he does not consider the most recent period of unwellness (late 2008) as an 'episode' of his illness as described by Dr PK, but rather that he was simply dealing with a great deal of stress at the time as a consequence of living in a shared house with four other people.
BJS states that his use of cannabis and alcohol was a big problem in his life (he describes himself as being a 'borderline alcoholic' for a number of years) but that he has not used cannabis for almost a year and alcohol for two and a half years.
BJS says that the administrator is providing him with $400 a week as a living allowance. He is currently living with his mother and pays her $200 each week for board and lodging. He has not needed to request extra funds from the administrator.
BJS says that after the review hearing in January 2009 he had intended to move temporarily to a country town but because he could not find appropriate accommodation he had travelled to Bali for some months before returning to Perth to stay with his mother. He had funded the trip to Bali with funds he had accumulated in his bank account prior to the Public Trustee being appointed his administrator.
BJS states that he has plans to travel overseas for a few years (he says he previously worked in London in information technology) and hopes to find employment. He wants to 'refresh' himself and to begin again elsewhere. He has 'moved away' from his four year old daughter (he has not seen her for about six months) because having contact with her for several hours every two weeks 'doesn't work for me'.
If the order for administration is revoked BJS says that he would leave the $350,000 in a high-yielding deposit and transfer whatever he needs to a working bank account.
BJS does not accept that if a relapse of his illness should occur then his cash funds would be at risk. He states:
I don't, because the original reason that I was actually put under a plenary [administration order] was because I was seen giving cigarettes out when I'd crashed my car and went into [hospital] the first time. So my initial episode I went in, and I was handing cigarettes out to people that were asking for cigarettes and a nurse saw me doing that, and then turned around and suggested to my brother that I should go under a plenary [administration order]. So the fact that I was handing out 50-cent cigarettes to someone, I lost all my money. So I don't see any risk as far as how I've spent my money along the way. (T:7, 090709)
BJS says that he is not currently taking any medication for his illness. He submits that the order should be revoked.
The report of the administrator
The Public Trustee did not attend the hearing. He provided the Tribunal with a written report which shows that the income of BJS consists of a part disability support pension and the interest earned on the funds of nearly $350,000 held in a financial institution. He states that BJS' mother is being paid $200 a week for board and lodging.
The Public Trustee states that since the order for administration was made in January 2009, he has had a few conversations with BJS, principally at the beginning of the administration but also more recently.
Is BJS in need of an administrator?
To decide whether BJS is in ongoing need of an administrator, I must first decide whether he is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating of all or any part of his estate (s 64(1)(a) of the GA Act).
A person is presumed to be capable of making reasonable judgments until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)(iv) of the GA Act).
The resolution of the question of capacity involves finding the presence of a mental disability and deciding to what extent that disability impacts on the ability of the person to make 'reasonable judgments' about his or her estate. The test is set against the person's particular estate: see FS[2007] WASAT 202 (FS) at [103] to [106].
Dr PK states that BJS has been diagnosed with bipolar affective disorder. BJS disputes this diagnosis stating only that he has suffered with depression. He does not accept that he experiences the manic phase of his illness.
As to the diagnosis, I accept the evidence of Dr PK as the specialist medical practitioner who has known and treated BJS over an extended period of time. I am not convinced by the explanations given by BJS for the periods when he has been assessed by his mental health team to be in the manic phase of his illness.
I find that it is highly likely that stress is a major factor in BJS becoming unwell. In that regard, it would appear from the evidence of BJS that a level of stress that can occur in daily living (see, for example, his experience in shared housing, above) can lead, in the right circumstances, to a relapse of his illness.
I am therefore satisfied that the estate of BJS is at risk due to the ongoing course of his illness. There is a combination of factors that lead me to reach this conclusion. They are that:
•According to the opinion of Dr PK, which I accept, the nature of BJS' illness (the fluctuating bipolar affective disorder) and the fact that he has had a number of relapses means that he will have a relapse in the future;
•BJS does not accept he is subject to manic episodes (which Dr PK states is when he is most at risk of excessive, irrational spending) and it is unlikely that he will put in place the necessary supports to plan for his own protection when a relapse occurs;
•The last manic episode of BJS' illness happened when he was having trouble with his shared accommodation which he says placed him under sufficient stress to make him unwell. Since that time he has either lived with his mother or travelled to Bali for an extended holiday. He also says he has not had contact with his daughter which was an ongoing stressful event for him. I infer from these facts that BJS' tolerance to the stress of daily living is not high and that the management of his estate can be characterised as such a stressor; and
•One of the symptoms of a manic episode is the risk of excessive and unreasonable spending. The nature of BJS' estate (a significant amount of cash funds) places that estate at a particular risk relative to other less immediately available estates given Dr PK's evidence of how quickly a relapse of the illness can take effect.
I am satisfied on all the evidence that BJS is unable, as a consequence of his mental illness (mental disability), to make reasonable judgments in respect of matters relating to his estate.
I am further satisfied that BJS is in need of an administrator. No evidence was provided as to ways in which his estate could be protected in the certain event of a relapse of his illness; on the contrary BJS maintains the position that he is not subject to manic episodes.
I accept that BJS wants to make his way in the world as independently as possible and that he feels unnecessarily restricted by the order for administration.
In this case, however, I am of the view that it is in the best interests of BJS that the protection of his estate for his current and future needs overrides his wish that the order be revoked.
I am mindful of the effect of the order and the restriction that it places on BJS. In this regard the administrator's attention is directed to the provisions of s 70 of the GA Act which sets out some of the factors that an administrator must take into account in forming an opinion of the best interests of a represented person. This section, which is reproduced in full below, expresses the need for an administrator to strike a balance between the person's right to function autonomously in the community and the proper protection of the person's estate.
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising an administrator to act contrary to the Legal Profession Act 2008.
(4)Nothing in subsection (2) shall be read as restricting the functions of an administrator at common law or under any written law.
My decision is that the administration order made on 13 January 2009 appointing the Public Trustee as the plenary administrator for BJS and authorising the administrator to expend up to a total amount of $2,000 per annum on gifts on behalf of BJS, be confirmed.
I have decided that the order should be reviewed in two years when a fresh assessment can be made on how the course and effect of BJS' illness impacts on his ability to manage his estate.
Order
Upon review under s 84 of the GA Act of an order for administration dated 13 January 2009, it is ordered that:
1.The order is confirmed as follows:
The Public Trustee is appointed plenary administrator of the estate of [BJS] with all the powers and duties conferred by the [GA Act].
2.The administrator is authorised to expend up to a total amount of $2,000 per annum on gifts on behalf of [BJS].
3.The order is to be reviewed by 9 July 2011.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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