ENQ (Administration)
[2008] TASGAB 5
•9 May 2008
Guardianship and Administration Board
Hobart
ENQ on the application of Stephanie De Garr, Community Mental Health Nurse, Community Forensic Mental Health Service – North for an Administration Order.
GAB No. XXXX
ENQ (Administration) [2008] TASGAB 5
REASONS FOR DECISION
Leon Peck (Chair)
Kellie Ashman (Board Member)
Pat King (Board Member)
Decision
9th day of May 2008
Administration – disability and incapacity - person with bi polar affective disorder, affected by delusional thinking – ‘in need of an administrator’ - lack of clarity in the extent of the person’s estate and entitlements
Guardianship and Administration Act 1995 s.51
On the 26th March 2008 the Board received an application for the appointment of an administrator for ENQ (DOB XXXX).
The applicant was Ms Stephanie De Garr, Community Mental Health Nurse, Community Forensic Mental Health Services, Department of Health and Human Services. Such application was made pursuant to section 50 of the Guardianship and Administration Act 1995 (‘the Act’).
At the time of the hearing ENQ was in receipt of Centrelink benefits and income from a family estate. He was a resident at XXXX, Launceston.
In accordance with the usual procedures of the Board, the hearing was conducted by the Chair as an informal discussion, all parties being present at the same time and able to contribute to that discussion where their evidence was relevant to a particular question.
The hearing
The Board heard the application on 9th May, 2008. The Board had available to it the documents listed in Appendix A. The following persons attended the hearing:
ENQ – proposed represented person
Ms Stephanie De Garr – applicant
ND – ENQ’s legal representative
Ms Christine Stacey – representative of The Public Trustee
The Board’s examination of ENQ’s level of capacity was intrinsically linked with the issues raised by the applicant regarding the need for an administrator. Accordingly the following is the evidence that the Board considered for the purposes of each of the tests in section 20(1) of the act.
Dr Rosemary Schneider, Psychiatrist, supplied a completed pro forma Health Care Professional Report in support of the application. She stated that ENQ has a disability and described that disability as Bipolar disorder. In particular she stated that ENQ is:
“Affected by delusional thinking at times”
She considered that ENQ lacked the ability to reliably make reasonable plans and follow them through or reliably determine cause and affect relationships noting that he:
“Has difficulty during exacerbations of bipolar disorder e.g. multiple unrealistic job applications, overambitious plans. Current difficulty in deciding to move to affordable accommodation although it is of some urgency financially”
Dr Schneider also stated that ENQ had:
“Manic spending sprees leaving large debts”
She also stated that:
“Mental Health records show severity and frequency of bipolar episodes and resulting financial effects”
“ENQ has very severe bipolar disorder – his pattern is of several mood swings per year, most years and this is worsened by unrealistic adherence to medication e.g. he no longer accepts he needs it when getting unwell. Loses judgement of financial and interpersonal matters when ill”
This assessment of ENQ’s capacity was complemented by Ms De Garr who stated in her application:
“ENQ has a history of financial difficulties but they are currently spiralling out of control. His expenditure on some items is excessive given his income and he is unable to make informed decisions to make positive changes. His decisions are also based on his potential income rather than his real income”
“……… ENQ does not appear to be able to make informed decisions regarding his current finances, wanting to maintain a lifestyle he would have with a relatively good income. It would appear that essentials such as food are the first to be reduced which given his diabetes is not in his long term benefit”.
During the hearing Ms De Garr supplemented this information in advising that priority was given to expenditure on taxis, telephone calls and tobacco. There had also been reluctance by ENQ to move to cheaper accommodation that could also assist in increasing his social network, reducing his telephone account, improving accessibility to local amenities and facilities, reducing the need for taxis, improving daily activities and reducing stress with a subsequent reduction in the use of tobacco.
Ms De Garr also advised that Aurora and Centrelink debts were being repaid and there remained an outstanding issue in relation to damage to a rental vehicle. It was also disclosed that ENQ has debt with Credit Corp and an outstanding fine.
In relation to assets Ms De Garr advised
“As far as I know ENQ has no saved funds, all his funds are already allocated. He does have family estate of a small amount that he receives”
Ms De Garr also advised that she understood that ENQ has accessed superannuation entitlement that he used for debt repayment.
Ms De Garr reported that cheaper accommodation had been arranged for ENQ and he was awaiting suitable accommodation with Housing Tasmania.
In response to questioning on financial support being provided to ENQ Ms De Garr stated:
“Anglicare were involved. They didn’t really do the level of assistance that I would expect them to do, they only just seemed to do like a little budget, they didn’t actually get involved in assisting in sorting out ENQ’s bills, so I’ve actually done a lot of that work and that was one of the reasons we were actually looking at administration orders because it actually tops me from being ENQ’s case manager, every time we speak it ends up being about a lot of financial problems that really aren’t of any consequence really. I mean they’re important but they shouldn’t be”-
ND, representing ENQ advised that he was opposed to the application considering that he had the ability to manage and conduct his own financial affairs.
ENQ acknowledged that during periods of hospitalisation, bills do mount and this does impose additional pressure.
When questioned on the support available to him during times when he was subjected to this pressure he referred to support from Dr Don Stanley, Dr Bruce Felmingham, and Crossroads. However the Board were not convinced that all or any of these resources were being marshalled in a coordinated and positive way to provide the support that ENQ himself acknowledged was at least periodically required.
ENQ also advised the Board that Ms De Garr did not know of his asset base and therefore what she had disclosed was inaccurate. He made reference to physical assets interstate and overseas and to intellectual property relating to “broadcast professional sound tapes” which could be worth 3 million in the space of 5 years. No specific evidence was tabled in relation to these claims.
ND stated:
“He (ENQ” asserts that his affairs are in order, he has arranged a consolidating loan through his family trust which has allowed him to pay out the urgent and critical debts and he has arranged for repayment schedules for the remaining ones”
ND also advised that ENQ has an accountant who had informed him that he will receive a tax refund of eighteen hundred dollars. A recent credit report had been received from the Tasmanian Collection Service which showed no outstanding demands.
ND also referred to the letter of support from Dr Bruce Felmingham and his recent employment with Anglicare. She also advised that ENQ is “investigating employment opportunities”. ENQ advised that he was confident of securing employment.
ENQ advised that in addition to his Centrelink entitlement he received $180 per fortnight from his family trust. The trust also paid for the maintenance of his assets (e.g. white goods). He also stated that he could access money from the trust to assist in the purchase of a house.
ENQ disagreed with Ms De Garr’s assertion that he was not willing to compromise in order to live within his financial means.
ND acknowledged that periods of hospitalisation had resulted in financial difficulties for ENQ with bills not being paid however he believed, many periods of hospitalisation had been unnecessary. There had been periods of up to 3 years without hospitalisation and four of the last 6 admissions on orders under the Mental Health Act had been revoked by the Mental Health Tribunal. She also stated that there had been no money spending sprees “since the early eighties”.
On the evidence available
The Board considered that ENQ did have a disability, there was incapacity and an associated need for assistance with financial and estate matters. The item on which the Board deliberated for some time related to the least restrictive option. The Board heard at length the support options available to ENQ. However there was little evidence to suggest that any of these options had provided the ongoing support that ENQ required in the budgeting and management of his finances.
The Board also had difficulty in clearly identifying ENQ’s financial situation. Obviously there remain outstanding debts, the extent of which is not clearly known as some items still require clarification e.g. the debt with Credit Corp, the damage to the rent-a-car, the outstanding fine.
The value of his assets were unclear. Entitlements to the family estate and intellectual property rights being examples of items which the Board considered lacked clarity.
The Board therefore decided that the appointment of an administrator to being ENQ’s best interest, albeit being fully aware of ENQ’s opposition to such an order. The Board confined the order to 12 months. The Board considered that this would provide the administrator with sufficient time to:
- Clearly identify current debts and introduce a strategy for their appropriate management
- Identify assets, potential assets and entitlements
- Work with ENQ in the formulation of budgets and the subsequent compliance
Under the order the administrator has the authority to access the required information, some of which would be difficult without an order.
At the end of the 12 months there should be a clear picture of ENQ’s financial situation enabling rational and objective decisions to be made – they being difficult at the time of the hearing because of inconsistencies and claims that could not be substantiated or supporting evidence provided. With structure and clarity around his income and assets ENQ, with the support of those sited at the hearing, may be able to assume responsibility for his assets. That is the order may be revoked.
The Board decided that a review after 3 months was required to:
- Ascertain the level of progress
- Ascertain difficulties being experienced
- Assess ENQ’s capacity and level of cooperation
- Assess the clinical benefits or otherwise that the order provided
In the absence of anyone else being proposed as administrator the Public Trustee was appointed.
The Order
THE BOARD ORDERS
That The Public Trustee be appointed as administrator of the estate of the represented person.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That a review of the order be conducted after three months.
That the order remains in effect until 8th May 2009.
DATED this 6th June 2008
Leon Peck
CHAIRMAN
APPENDIX A
Documents considered by the Board re Application for Administration
Proposed Represented Person: ENQ
Applicant: Ms Stephanie De Garr
The Application
Health Care Professional Report
GAB File Notes
Email form ENQ
Newspaper article
Email from Bruce Felmingham dated 5th May
2008-06-10 ENQ’s CV
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