BMFUM (Administrator)
[2011] TASGAB 15
•15 July 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BMFUM – Application for Appointment of an Administrator by Royal Hobart Hospital
BMFUM (Administrator) [2011] TASGAB 15
REASONS FOR DECISION
Elizabeth Dalgleish (Member)
Date of Hearing: 15 July 2011
Administration - Board's own motion to include an order for guardianship - Longstanding schizoaffective disorder with cycles of relapse affecting the quality of life of represented person.
Guardianship and Administration Act s.20
BMFUM is a 66 year old pensioner with a long standing schizoaffective disorder. She lives alone in Hobart in rented accommodation. During a recent admission to the Royal Hobart Hospital, the hospital social work department made an application for an emergency administration order on 30 May 2011. The Board appointed the Public Trustee for 28 days and renewed the order on 27 June 2011. On 31 May 2011 the Board received a full application for the appointment of an administrator for BMFUM.
The application was heard on 15 July 2011. The hearing was attended by:
·BMFUM
·NUM (brother)
·GC (sister)
·Sarah Darcey, Social Worker, Royal Hobart Hospital (as applicant)
·Bojana Tatarevic, Mental Health Services, case manager
·Peter Handley, Clinical Nurse, Royal Hobart Hospital
·Edmund Gale, GAB Investigator
Although the application related to administration, the pre-hearing papers, the Health Care Professional Report and evidence from the witnesses during the hearing disclosed a potential need for a guardian. Section 20 of the Guardianship and Administration Act 1995 provides that if the Board, after a hearing, is satisfied that the person in respect of whom an administration application is made is (i) a person with a disability, (ii) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances, and (iii) is in need of a guardian the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary. Accordingly, the hearing proceeded considering both guardianship and administration issues for BMFUM.
References to legislation in this decision are references to sections of the Guardianship and Administration Act 1995.
Is BMFUM a person with a disability? (Sections 3, 20(1)(a) and 51(1)(a))
The application was accompanied by a pro forma Health Care Professional Report by Dr Joanna Howe who is a medical practitioner at the hospital. Her report indicated that BMFUM has had a schizoaffective disorder for the past 52 years having had her first psychiatric admission in 1959. This diagnosis was not disputed at the hearing by any party. The Board was satisfied that BMFUM has a disability within the meaning of the Act.
Does BMFUM lack capacity with regard to her estate? (Section 51(1)(b))
BMFUM had made a substantial recovery between the time of the application and the hearing. Dr Howe’s report in May 2011 stated that in relation to financial matters BMFUM:
·Had impaired decision making because of her delusions and lack of insight into her mental illness
·When unwell makes impulsive spending decisions and lacks sound judgment about spending decisions
·Has paranoid delusions about persons both living and dead trying to steal and control her money
·Had closed bank accounts which had affected the payment of her pension and rent
·Lacked planning and reasoning skills, was susceptible to influence and lacked impulse control
·Develops manic symptoms with excessive spending sprees
At the hearing it was common ground between the witnesses that BMFUM has recently recovered from the worst of those symptoms and was not currently manic, nor prone to excessive spending sprees. Additionally, during the period of the emergency order the Public Trustee had resolved the problems with the closed bank accounts and the Centrelink entitlements. The evidence was clear that when well, as she currently is, she is capable of managing day-to-day financial commitments and is frugal with her money.
NUM is the executor for their parents’ estate. NUM and his sister, GC, at times, form part of the delusional constructs described by Dr. Howe. He stated that since 2008, BMFUM had been reluctant to accept her entitlement under their parents’ estate. To that end, he is still managing a parcel of shares from that estate (Westfarmers and Woolworths shares to a value of approximately $11,580.00) on BMFUM’s behalf. She had accepted a cash entitlement of $26,000.00, somewhat reluctantly, from the estate of which she has expended about $8000.00. BMFUM had refused her full entitlement of her parents’ estate on the basis that she did not “need” it.
BMFUM explained that she had spent some of the cash inheritance on painting her rented accommodation and bought some clothes. She was unable to explain the spending of the balance. She has a history, as reported by her sister, of buying unnecessary items in spending sprees and then giving the items away after purchase. She has no recollection of what she has bought at the time. BMFUM stated that she saves for spending sprees, however she was unable to account for the spending of large sums of money.
The applicant had discussed with BMFUM the making of an enduring power of attorney for future occasions when she is unwell and unable to manage her finances, but she did not respond to that option.
BMFUM is capable of managing her Centrelink benefits and does so successfully when well. However her decisions in relation to significant assets arising from her parents’ estates appeared irrational given her limited means and the fact that that which she has spent, was not spent in her own best interests. In other words, her continued refusal to take possession of that part of her estate demonstrates a lack of capacity with regard to that asset. Because of her denial of a problem, there also remains a susceptibility to another worthless spending spree which could erode the funds available to her. Therefore, the Board concludes that the concerns that Dr. Howe had regarding BMFUM’s capacity, are still operative with regard to the largest assets in BMFUM’s estate. Although BMFUM is currently well, she is not demonstrating capacity with regard to her largest financial assets.
Is BMFUM in need of an administrator? (Section 51(1)(c))
The Board was satisfied that BMFUM needs an administrator with respect to the funds that she has inherited from her parent’s estate. An administrator limited to these assets can ensure that the share portfolio is managed in her best interests and make decisions about whether retaining the asset as shares or cash would be most beneficial. An administrator can also prevent these significant assets from being either (i) underused as is presently the case with the shares or (ii) used in a future spending spree that will not benefit BMFUM. An administrator can ensure that the funds are spent in BMFUM’s best interests. The Board was not satisfied that she required an administrator with respect to her day-to-day management of her pension.
Does BMFUM lack capacity with regard to her person and circumstances? (Section 20(1)(b))
BMFUM has been unwell for most of her life. Her siblings described a cyclical and predictable pattern of relapse and remission of her symptoms. This has significantly affected her quality of life. Her siblings were quite distressed from their perspective that this has never been addressed and, despite a long history with Mental Health Services, that there has never been a comprehensive intervention to stabilise this and prevent or alleviate the symptoms of this pattern.
Dr. Howe’s report in May 2011 stated that BMFUM noted recent deteriorations in relationships with multiple health care providers and her siblings. They became incorporated into her delusions, which has lead to social isolation and affected her health care. She was at risk from non-compliance with medications and has never accepted the diagnosis of a mental illness. She refuses any changes to medication. Dr. Howe expressed the view that to facilitate ongoing medication optimsation, and improvement of mental state, medical guardianship is required. BMFUM has no insight into her mental illness and resultant poor judgment. She is pre-disposed to impulsive decisions. She was, at the time of the report, talking of flying to Melbourne for treatment at St John of God.
There was evidence from Bojana Tatarevic that at the time of the last admission to the RHH, Ms Tong Lee had only missed taking one pre-prepared Webster pack containing daily medications. However, NUM stated that there has been a history of non compliance over the many years that Ms. Tong- Lee has been unwell.
At the hearing, evidence from BMFUM’s siblings and Bojana Tatarevic revealed that BMFUM relapses occur suddenly and without “trigger symptoms”. The delusions about her case manager, Bojana, and her family affect treatment and provision of services useful to maintaining mental stability.
After hearing the evidence, the Board was satisfied that BMFUM lacks insight into her mental illness and the effect that this has on her life. Although all witnesses acknowledged that she was well at the time of the hearing, “wellness” for BMFUM is not the same as having capacity and insight into the effects of her illness. In particular her refusal to appoint an enduring power of attorney and minimisation of the need for support in her home reflected her lack of insight into the significant possibility of relapse and the need to make preparations or have support in case of that event.
Is BMFUM in need of a guardian? (Section 20(1)(c))
At the hearing, evidence was supplied by Bojana Tatarevic that BMFUM had become very unwell without any obvious trigger. In other words, she tends to become very unwell very quickly. At one stage, the Mental Health Crisis Team had been able to prevent a hospitalisation, however prior to the current hospitalization this had not been possible. As part of her illness, BMFUM’s delusions made it difficult to provide any sort of intervention. It also makes it difficult to adjust Ms BMFUM’s medication to prevent a relapse.
NUM was frustrated that there was nothing in place which would ensure that BMFUM was consistently taking her medication. He thought that this would increase BMFUM’s chance for better health and quality of life. This would enable his sister to then be able to manage her affairs. It was his view that history should tell us that his sister had had this condition since she was 18years of age. He stated that it was important to note that her wellness was just a window in a pattern that had been going on for a very long time. The real issue for him was the quality of her life which has been negatively affected by these patterns of illness.
BMFUM was due to be released by the RHH the week following the hearing. Her future case management was to be provided by the Older Persons Mental Health Team “OPMHT”. It was revealed that she had not even been assessed by OPMHT at that stage and wouldn’t be assessed for a while. There was a real fear that BMFUM may fall through the cracks if no service providers were organized given that BMFUM rejects the services of Ms Tatarevic and rejects the assistance of her siblings all of whom are the subject of historical and current delusions. The option of a Community Treatment Order was canvassed but it appeared that this would not have been the best option for BMFUM.
The Board considered that there are a range of important decisions that if made properly now can address some of the concerns that NUM has for his sister. Decisions about levels of support and medication will need to be made in the immediate future which will have an important impact upon whether BMFUM enjoys a better quality of life or whether she continues the negative cycle that her siblings have watched for a long time, unable to assist. Although she is “well” BMFUM continues to minimize the very real possibility of a relapse in her condition and also her future need for support. If the decisions made now about future medication and support reflect her current attitude, it is likely that the negative cycle will continue. A guardian can intervene now to ensure that she is set up for the future with a consistent medication plan and a comprehensive support plan.
As this was a transitional period for BMFUM and as the Board was mindful of making an order as least restrictive as possible, it was the Board’s decision to make an order for 6 months to facilitate the provision of services and provide consent to medical decisions.
Conclusion:
The Board was satisfied that the represented person
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of her estate, and her person and circumstances; and
is in need of an administrator and a guardian;
THE BOARD ORDERS
That The Public Trustee be appointed as the represented person’s administrator.
That the powers and duties of the administrator are limited to collecting and managing the inheritance due to the represented person from her mother’s estate.
That the administration order remains in effect to 14 July 2014.
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning;
consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment, and
provision of services for the represented person.
That the guardian shall report to the Board in accordance with the approved form for annual reports prior to the expiration of this order.
That the guardianship order remains in effect to 15 January 2012.
….............................
Elizabeth Dalgleish
MEMBER
12 August 2011
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