DC
[2021] WASAT 95
•14 JULY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DC [2021] WASAT 95
MEMBER: MR J MANSVELD, SENIOR MEMBER
HEARD: 26 MARCH 2021
DELIVERED : 14 JULY 2021
FILE NO/S: GAA 1170 of 2021
DC
Represented Person
Catchwords:
Guardianship and administration - Administration - Mental disability - Psychiatric condition - Relapse of psychiatric condition - Fluctuating condition - Reasonable judgments - Estate at risk - Administration order made - Direction to consider whether to seek reversal of financial transaction
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64(1)(a), s 64(1)(b), s 82, Pt 6
Mental Health Act 2014 (WA)
Result:
Administration order made
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
DC is 63 years of age. She has a psychiatric condition, a diagnosis of bipolar affective disorder type 1.
DC is married, however separated and has purportedly entered into a relationship with RM.
DC has two sons, AC and RC.
On 22 March 2021 a hospital mental health team and AC (applicants) made an application for the appointment of an administrator of DC's estate (application).
The application was made pursuant to the Guardianship and Administration Act 1990 WA (GA Act).
The concern of the applicants was that DC had made several large financial transactions whilst still an inpatient in a mental health unit including selling shares and accessing her superannuation, the proceeds of which were allegedly transferred to RM.
The application was heard urgently on 26 March 2021. Present were DC remaining as an inpatient in the mental health unit, RM, AC, Dr DH, treating psychiatrist and JB, social worker with the mental health team.
I appointed the Public Trustee as the plenary administrator of DC's estate. The administrator was directed to consider whether an application should be made under s 82 of the GA Act in respect to the transfer by DC of an amount of approximately $500,000 to RM.
Brief reasons were given at the hearing with more substantive reasons to follow.
The following are the reasons.
Relevant legislation
Administration applications are to be considered under Pt 6 of the GA Act.
The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
Relevantly:
The primary concern of the Tribunal is the best interests of DC.
In considering the application the Tribunal shall, as far as possible, seek to ascertain the views and wishes of DC as expressed, in whatever manner at the time, or as gathered from her previous actions.
DC is presumed to be capable of managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing an administrator of DC's estate unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to DC, the Tribunal must further determine whether she is in need of an administrator. If the needs of DC can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
If the Tribunal decides that DC is in need of an administrator of her estate 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.
If a administration order is made the order must place the least restriction necessary on DC.
In deciding who may be appointed administrator, the Tribunal is required to find that the proposed administrator (an individual over 18 years of age or a corporate trustee which includes the Public Trustee), will act in the person's best interests and be otherwise suitable to act. The Tribunal is to take into account as far as is possible, the compatibility of the proposed administrator with the person and any appointed guardian; the wishes of the person and whether the proposed administrator will be able to perform the functions vested in them.
Evidence and submissions
DC
In her evidence DC confirmed that she transferred approximately $500,000 to RM. The funds were in part derived from her share of the sale of a rental property jointly owned with her spouse. DC said that she received $124,000 from the sale. The balance of the funds were obtained from her superannuation fund that she was able to access given that she is over 55 years of age and not currently employed.
DC said that the $500,000 was in the form of a no interest loan to RM and the basis upon which it was advanced was that she and RM 'were going half share in a house' (property).[1]
[1] ts 14, 26 March 2021.
DC had viewed the property and understood its purchase price to be $1.1 million. She said that there was a mortgage loan on the property in the name of RM.
DC maintained that the property was going to be jointly owned by her and RM. She said that although the property title was in the name of RM alone 'we have done an agreement that we both owe(n) fiftyfifty.'[2]
[2] ts 15, 26 March 2021.
DC then said that she and RM would execute an agreement drafted by a lawyer that the property would 'come back to me eventually'.[3] By that she meant that if anything happened to RM the funds she advanced would be repaid together with her share of the profits once the property was sold.
[3] ts 16, 26 March 2021.
When asked why her interest in the property was arranged in the way she described, DC said that it was to ensure that her sons would not be able to get hold of the property although she could not say how the sons could have achieved such an outcome. DC said that she was concerned her sons would gain control through guardianship.
DC said that she intended to eventually live in the property although she could not say when because 'I don't think the doctor will release me to the property address'.[4] She expected to live with her brother when first discharged from hospital.
[4] ts 18, 26 March 2021.
When asked what else comprised her estate, DC said that the balance remaining on her superannuation fund was approximately $6,000. She said that she had a joint share in a property in which her spouse remained living, 'a few shares' some owned by her and some in joint names with her spouse and the value could amount to hundreds of thousands of dollars.
DC said that she was not currently in receipt of any income and had previously received the carer's pension in respect to her spouse.
When asked who she would choose if an administrator was appointed, DC nominated AC. When further asked what she would expect AC to do in his role as administrator she said 'I don't really know'.[5]
[5] ts 32, 26 March 2021.
DC said that she would also choose AC to be her power of attorney on the understanding that if it was not him then 'the government will take control'.[6]
RM
[6] ts 24, 26 March 2021.
It was the view of RM that DC had put her funds towards the property because she was effectively homeless given that she could not return to live with her spouse because he had secured a restraining order against her.
RM said that he and DC had known each other since they were children and are in love. He said that he had 'gone halves' in the property transaction with DC.[7] He had no intention of denying her children's inheritance but submitted that they were jealous because he and DC were together and they were concerned their inheritance would be spent.
[7] ts 19, 26 March 2021.
RM said he was currently living in the property and prior to that he had been living in another property he owned.
RM said that he received the funds from DC two to three weeks ago and although she was in hospital she was about to be discharged. When the property had been viewed DC was not in hospital.
RM said that although the property was in his name, it was owned '5050' with DC.[8] DC had not wanted her name on the title because she did not want her sons involved. DC was said to be concerned that her sons would take control of what she spends by way of a power of attorney.
[8] ts 21, 26 March 2021.
RM said that the funds advanced by DC would be the subject of an agreement between them for the return of the funds. RM said:
When the property ever gets sold, or on my death. It will be written up in the will. Right? So she gets her share before my family get anything. Right? Like I say, I'm not trying to take the inheritance of the boys. They're quite welcome to it. I don't want it. I don't need it.[9]
[9] ts 22, 26 March 2021.
RM also said that he would change his life insurance policy (he did not state how) but that he had not yet done so.
AC
AC said that in December 2020 DC was already with RM. AC had been communicating with DC by telephone and was made aware that she could no longer stay at a caravan park with RM because of her delusional behaviour. The police had been called. This AC said happened at the time that RM was purportedly caring for DC.
DC eventually called RC and he took her to hospital where she was admitted as an involuntary patient under the relevant mental health legislation.
AC said that DC was discharged from hospital on 18 December as a voluntary patient but within two weeks at the beginning of January 2021 she and her spouse had placed an offer to purchase a unit for $2 million (unit) with the express intention of DC living with her spouse at that particular address.
Soon after, around the middle of January, AC said that the offer on the property was accepted when the offer on the unit was current. This exposed DC to just over $3 million dollars in property transactions.
AC said that towards the end of January 2021 with the assistance of RC, the spouse obtained a restraining order against DC which DC continues to challenge.
AC said that in February 2021 he flew to Western Australia from New South Wales where he lives because he was concerned about his mother's mental state. He found her delusional and psychotic. When he needed to return, on the day of his departure DC was made homeless because she could no longer stay in a caravan park with RM. This was the second time DC had been made homeless under the care of RM. AC said he took DC to hospital.
AC said that he had communicated with DC every day for the past five years because of his concern about her health and well-being.
In early March 2021 AC said that he contacted RM as he had heard that there was talk about a property that DC was possibly going to purchase with RM. DC was still in hospital although RM had said that she was doing much better.
AC said that he also wanted a mediated outcome to the property settlement between DC and her spouse. RM was said to have supported this approach.
AC said he was surprised when he found out that DC was intending to be discharged from hospital to the property and live with RM. He felt deceived and considered there was a lack of transparency over such a large purchase and in his view considered DC not to have been capable of agreeing to it.
AC said that RM had only known DC since she had become unwell and he did not believe that there had been a continuous relationship from their childhood.
AC submitted that the purchase of the property and the advancing of monies to RM was consistent with the impact of DC's psychiatric condition.
AC said that he and RC do not agree on everything and that they are independent of each other (for example he did not agree with RC assisting DC's spouse to obtain a restraining order).
AC proposed that he be appointed the administrator of DC's estate because he had been the one demonstrating consistent care of DC; that he had supported RM in hospital meetings and had been open and transparent with RM which had not been reciprocated.
RC
RC said that he supported AC in what he had been doing and confirmed that AC had consistently followed up matters with the hospital for DC. He supported the appointment of AC as administrator but if that could not happen then the Public Trustee should be appointed. He did not support RM in the administration role.
Mental health team
The Tribunal had before it a report from a hospital medical officer (medical report).
Dr DH gave oral evidence.
The present admission of DC to a mental health unit commenced on 21 February 2021.
The medical report noted that assessments of cognitive capacity had not been performed. The diagnosis of bipolar affective disorder type 1 was confirmed.
The medical officer assessed DC as capable of making simple financial decisions but was unsure as to DC's ability to make complex financial decisions such as the management of property or large sums of money, the purchase or sale of significant assets, pursuing entitlements including income and superannuation and advocating for her own interests with financial institutions.
The medical officer assessed DC as capable of making personal decisions including deciding where she was to live once discharged from hospital. It was likely that DC would be discharged on a community treatment order under the Mental Health Act 2014 (WA). DC was assessed as capable of executing an enduring power of attorney and enduring power of guardianship.
In his oral evidence Dr DH said that he had attended to DC two or three times per week over the last few weeks. He had formed the view that DC appeared to have recovered from the symptoms of mania for which she had been admitted to hospital and would have been satisfied for her to continue her recovery in the community but for the recent receipt of information from AC that DC had transferred a large amount of funds to RM.
Dr DH said that he subsequently met with DC and she confirmed the transfer after previously denying the disposition of any funds.
Dr DH said that it was his understanding that DC transferred the funds to RM whilst she was on day leave from hospital, that she had been taken to the bank by RM to transfer the funds and then returned to hospital.
Dr DH said that he was concerned at the withholding of information by DC and whether she had also withheld other matters from the treating team. He was worried that DC was making financial decisions that she would later regret and in a recent meeting with her, DC appeared to Dr DH to have regretted the decision to transfer the funds.
Dr DH said that the approach of DC to the transfer of funds to RM raised a concern with him that maybe her psychiatric condition had contributed in some way to her inconsistency.
Dr DH said that his current impression of DC's mental state was that she had not fully recovered from the manic episode and that he currently assessed her as not capable of making complex financial decisions. He said that DC would benefit from further psychiatric assessment with the benefit of undergoing a longitudinal assessment of her capacity whilst she was in the community.
Discussion of the issues
The primary questions for determination are as follows:
•Does DC have a mental disability?[10]
•If yes to that question is she unable, by reason of the mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate?[11]
•If yes to that question then, is she in need of an administrator or can her needs be met by other means less restrictive of her freedom of decision and action?[12]
[10] Section 64(1)(a) of the GA Act.
[11] Section 64(1)(a) of the GA Act.
[12] Section 4 and section 64(1)(b) of the GA Act.
DC has a diagnosis of a psychiatric condition. She therefore has a mental disability.
It is instructive to consider aspects of the meaning of mental disability as formulated by the Full Tribunal in FY[2019] WASAT 118. Relevantly:
27The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgements, in disturbed behaviour or in learning difficulties.
30[T]he definition does not contain any requirement that the 'mental disability' be permanent. Some mental disabilities are permanent, and some (such as some psychiatric conditions) may be experienced transiently[.]
31[T]he definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark. That no doubt reflects the fact that a person's mental ability may be located at any one of an infinite number of points on the spectrum, or points plotted on a grid, which represents the various aspects of cognitive functioning, including the speed and ease of information processing, problem solving, reasoning, and memory[.]
Prior to the hearing DC had been hospitalised due to a relapse of her bipolar affective disorder type 1 manifesting in symptoms of mania. DC was still in hospital at the time of the hearing however her mental state had improved with treatment.
The improvement had initially satisfied Dr DH that DC's further treatment could take place in the community however on hearing of the transfer of significant funds by DC to RM, Dr DH considered the likelihood that DC's mental health had not sufficiently stabilised and further that the ongoing symptoms of her psychiatric condition continued to impact on her decision-making.
I accept the evidence and opinion of Dr DH as DC's treating psychiatrist with specialist knowledge of her psychiatric condition. Moreover the concerns expressed by Dr DH are reflected in the evidence surrounding the transfer of funds to RM.
DC's evidence reveals the following:
She has separated from her spouse which raises the prospect of a property settlement. There are marital assets including the jointly owned property in which the spouse continues to reside, shares and bank funds. DC has converted the bulk of her superannuation into a purported loan to RM which has been used to purchase the property. This may impact on the pool of marital assets.
This decision by DC was made whilst she was in hospital recovering from a relapse of her psychiatric condition and appears not to have been informed by her own specialist financial or legal advice.
The funds were transferred to RM without a formal loan document in place and currently relies upon the goodwill of RM who is the legal owner of the property. As a consequence, those funds are at risk.
DC's rationale for the loan to RM rather than securing the funds by way of joint or other ownership of the property was so that her children could not get hold of the property although she could not say how they could have achieved that result had they wanted to and for which there was no evidence.
Despite her stated concern of her children taking control of the property, when asked whom she would choose to act as administrator or 'power of attorney' should that be needed, she nominated her son, AC.
According to Dr DH, DC had recently expressed some regret at her decision.
The evidence of DC is inconsistent, lacks coherence and features a degree of impulsive decision-making. By her actions she has put her estate at risk. I am satisfied she has made unreasonable judgments concerning her estate and remains at risk of continuing to do so because of the ongoing effects of her psychiatric condition.
DC is in current need of an administrator of her estate given the risks she faces. There is no less restrictive means available to protect her estate. Although AC has nominated himself, I do not consider him suitable to be appointed at this time given the likely need to act quickly to secure DC's estate, his distance from Western Australia and DC's variable attitude towards him.
I have decided therefore to appoint the Public Trustee as DC's plenary administrator. I will set a review of the order in three months given that DC continues to recover from the relapse of her psychiatric condition.
I will direct the administrator to consider any action that might need to be taken under s 82 of the GA Act in respect of the monies transferred to RM.
Orders
The Tribunal declares that the represented person, DC is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
The Tribunal orders:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is directed to consider whether an application should be made under s 82 of the Guardianship and Administration Act 1990 (WA) in respect to the transactions transferring approximately $500,000 to RM.
3.A transcript of the hearing will be provided to the administrator.
4.The administration order is to be reviewed by 26 June 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (SENIOR MEMBER)
14 JULY 2021
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