FC
[2005] WASAT 258
•23 SEPTEMBER 2005
FC [2005] WASAT 258
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 258 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | BA:325/2004 | 16 MARCH 2005 | |
| Coram: | MR J MANSVELD (MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) MS R CARROLL (SENIOR SESSIONAL MEMBER) | 23/09/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Existing administration order confirmed | ||
| B | |||
| PDF Version |
| Parties: | FC |
Catchwords: | Administration Whether represented person in need of administrator |
Legislation: | Guardianship and Administration Act 1990 (WA) Mental Health Act 1996 (WA) State Administrative Tribunal Act 2004 (WA) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : FC [2005] WASAT 258 MEMBER : MR J MANSVELD (MEMBER)
- DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)
- Applicant
Catchwords:
Administration Whether represented person in need of administrator
Legislation:
Guardianship and Administration Act 1990 (WA)
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Existing administration order confirmed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : N/A
Solicitors:
Applicant : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The Tribunal confirmed the appointment of the Public Trustee as the represented persons administrator.
Background
2 This review of administration orders was instigated by the Guardianship and Administration Board on 22 June 2004 under s 84 of the Guardianship and Administration Act 1990 (WA). The hearings for this review on 22 July 2004 and 22 September 2004, were before the Guardianship and Administration Board ("the Board"). On 24 January 2005, the Guardianship and Administration Board ceased to exist and jurisdiction under the Guardianship and Administration Act 1990 was vested in the State Administrative Tribunal. The hearing on 16 March 2005 was before the State Administrative Tribunal as constituted under the State Administrative Tribunal Act 2004 (WA). In these reasons, reference will be made to the Board as constituted prior to jurisdiction being transferred to the Tribunal.
History of orders
3 An order appointing the Public Trustee as limited administrator for the represented person, FC, was made on 26 June 1997. Since that time, while the orders have been amended and confirmed, the Public Trustee has remained as administrator. It is the orders made on 26 March 2003 that confirmed the appointment of the Public Trustee as plenary administrator which are the subject of this review.
4 A hearing was convened before a single member of the Board on 22 July 2004. At the request of FC, that hearing was adjourned to enable her to give instructions to a solicitor, Mr M, and to provide an opportunity for further medical reports to be presented to the Board.
5 The hearing was reconvened before a three member Board, on 22 September 2004. At that hearing FC was represented by Mr M. A request for that hearing to be adjourned by Mr M was granted on the ground that notice of the adjourned hearing was not sent to Mr M who therefore was not prepared for the hearing.
6 The matter was re-listed for hearing on 1 December 2004. That hearing date was vacated at request of Mr M, to allow further time for his
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- office to obtain medical reports that had been requested but not received. Further, Mr M advised the Board that he was seeking professional assistance to prepare a proposal for managing FC's estate and that would not be available in adequate time to prepare submissions prior to the hearing date.
7 The hearing before the Tribunal, on 16 March 2005, was attended by JC and KF from the Public Trustee's Office, and Dr PS, son of FC. Mr M advised the Tribunal by letter, dated 15 March 2005, that his firm is no longer instructed by FC and that accordingly they would not be appearing at the hearing.
8 At the time that the review was commenced and until November 2004, FC was on a Community Treatment Order under the Mental Health Act1996 (WA). In December 2004, FC travelled to Queensland and at the time of the hearing was an involuntary patient at the Royal Brisbane Hospital. The Tribunal heard from FC by telephone during the hearing.
Capacity
9 The Tribunal had before it the following medical reports as evidence on the question of whether FC has a mental disability by reason of which she is unable to make reasonable judgments in respect of some or all of her estate.
Dr Hans Stampfer
10 In a Doctors Guide dated 10 August 2004, Dr Stampfer, Consultant Psychiatrist at QEII Medical Centre, states that he has known FC for one year. He states that FC:
"has a long standing diagnosis of chronic paranoid schizophrenia. Some cognitive impairment may be related to brain lesions probably caused by vascular insufficiency".
11 He further states that she:
"is likely to have further paranoid/psychotic episodes and cognition/judgement likely to become more impaired".
12 His assessment of FC's ability to make reasonable judgments with respect to financial affairs is "Not fully – is prone to lapses of judgement". As to FC's capacity to execute an enduring power of attorney, Dr Stampfer states that FC does not now have full capacity to execute this
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- instrument. He notes on his report that FC "has very strong views about the injustice of being denied EPA" (Enduring Power of Attorney).
13 With respect to capacity Dr Stampfer states that:
"the major problem is her unpredictable mental state/behaviour and impulsive lapses of judgment. It is for this reason that she has been given a Community Treatment Order".
14 Dr Stampfer attaches to the Doctor's Guide, reports and letters he has written recently, that are relevant to the question of capacity. In a report to the Mental Health Review Board on 9 July 2004 he states that FC requires ordered supervision to ensure olanzapine is taken. When dosage was lowered previously her mental state deteriorated to where involuntary admission was required. He also refers to the fact that an MRI investigation (whilst in Perth clinic) has revealed areas of cortical damage.
15 In a letter to Public Trustee dated 22 July 2004, Dr Stampfer states his opinion that FC is not fully capable of managing her financial affairs and that he believes that there is justification for a continuation of Public Trustee supervision. In response to inquiries by the Public Trustee as to whether it would be appropriate for FC to go on a cruise, he states his view that she would be able to go on a cruise but on condition that medication is supervised. He states that he "cannot in good faith suggest she is fully capable of managing her financial affairs". He expresses the view that FC should be allowed to manage her Centrelink pension and that all reasonable purchase requests should be approved and that it is "her decision if she wishes to spend all her estate".
16 On 3 August 2004, Dr Stampfer signed an extension of Community Treatment Order (CTO) which was effective until 5 November 2004.
Dr Alan Leckie
17 In a Doctors Guide dated 5 August 2004, Dr Leckie, General Practitioner at Dalkeith Medical Centre, states that he has known FC for one and a half months, noting that FC sees other doctors in the practice. His diagnosis is "paranoid schizophrenia" and he states that her condition is anticipated to be stable if she remains on medication. Regarding FC's ability to make reasonable financial decisions Dr Leckie states:
"Not sure, may make poor choices if her mental condition is not under control".
(Page 6)
18 He considers FC incapable of making reasonable decisions in respect of personal health care, referring to the fact that she is wanting to reduce her dosage of zyprexia. He says:
"In the past this has resulted in exacerbation of her illness."
19 Dr Leckie also comments:
"Pt [Patient] is very critical of the Public Trustee. She perceives them as acting against her best interest. She is critical of other health professionals who appear to be acting in her best interest."
20 His assessment is that FC is incapable of executing an EPA, referring to the fact that she remains on a CTO.
Dr Yvonne Mews
21 In a Doctor’s Guide dated 29 July 2004, Dr Mews, General Practitioner at the Dalkeith Medical Centre, states that she has known FC for four months. The diagnosis given is "paranoia with some insight, treated schizophrenia controlled on medication". The prognosis given is "static if medication confirmed". Dr Mews assesses FC as capable of making reasonable decisions in relation to financial affairs. She comments in her report:
"I have seen this lady often in the last 3 months and note that she is determined to cease her medication if possible. If she ceases her medication it may be the case that she will be incapable of making reasonable decisions regarding all her affairs."
22 She assesses FC as EPA capable.
23 In a letter dated 5 August 2004 to the attention of Mr N, solicitor for FC, Dr Mews wrote:
"Whilst (FC) hads [sic] been attending our practice I have seen no evidence of abnormal behaviour apart from a tendency to be paranoid at times, which she herself recognizes. It is possible that this gets worse when she gets upset, but I do not see this affecting her ability to function independently."
(Page 7)
24 In an open letter dated 25 November 2004 concerning FC, Dr Mews states that she has seen FC regularly since May 2004. She states that FC is compliant with her appointments and medication
"I have read her old file and most of the issues in it relate to non compliance with medication. I can’t see any evidence of delusional behaviour which was inappropriate except when she was off medication."
25 She states further:
"… I have not seen (FC) off medication so I cannot comment on her behaviour when she is not medicated."
26 Dr Mews also notes that FC disagrees with Dr Date and Dr Stampfer regarding zyprexa and therefore has a CTO.
27 Dr Mews evidently referred FC to Dr Simon Dimmitt, Consultant Physician, regarding FC's episodes of dizziness. In a letter to Dr Mews, dated 4 October 2004, Dr Dimmitt notes that he saw FC on September 25 and states that he "suspected that the Olanzaphine was contributing but obviously am reluctant to modify this."
Dr Kenneth Orr
28 Dr Orr, Consultant Psychiatrist, confirms in an open letter "to whom it may concern" dated 24 November 2004, that FC was a patient at Perth Clinic from 16 November 2004 – 24 November 2004. He states that FC:
"… was compliant with treatment and proved a model patient. There were no complaints about her behaviour from other patients or staff.
OT assessment did not reveal any gross deficits in living skills."
29 In another open letter, undated but faxed to the Board on 23 December 2004 and relating to the same period of time that FC was a patient at Perth Clinic, Dr Orr states:
"The occupational therapy assessment indicated that (FC) was able to manage with day to day demands of cooking and budgeting on a small scale."
30 He goes on:
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- "With respect to her ability to manage her financial affairs, I would proffer the suggestion that this could be allowed to happen but only with the following caveats.
Firstly, it would be important to financially safeguard her accommodation so that the risk of homelessness is made negligible. Secondly, that she remain on medication as prescribed by her treating doctors. Her ability to manage her finance in the long term is highly dependent on her mental health status. During my assessment of her whilst she was an inpatient at Perth Clinic, she was reasonably stable and was able to conduct herself amicably with staff and patients alike. Thirdly, she should have liaison with an accredited Financial Advisor."
Dr Mohsen Mohseni-Goki
31 In a Doctors Guide, Dr Goki, Hospital Medical Officer, Royal Brisbane and Women's Hospital states that he has known FC for three months. He lists as the relevant diagnosis "delusions" and "disorganised thinking". His assessment is that her condition is "currently stable" and that FC "is insightless to her illness but doesn’t have a cognitive impairment". With respect to capacity to make reasonable financial decisions he says "not sure" and "variable". He also states "not sure" regarding capacity to execute a valid EPA. Dr Goki states the view that "looking at previous medical history (FC) is vulnerable to exploitation".
32 Further evidence as to capacity is provided by various reports prepared for the Tribunal by the Public Trustee. In summary, the Public Trustee states the view that FC is a person who is incapable by reason of her mental illness of managing all of her estate. In her report of 19 September 2004, the Public Trustee refers to claims by FC that she is capable of managing her own affairs and draws the attention of the Board to the following matters:
(1) That the Public Trustee was informed by Dr Stampfer on 23 July 2004 that FC had, just prior to the sale of her unit, entered into a contract to purchase a motor vehicle worth approximately $20 000. Dr Stampfer reported that he contacted the dealer involved and managed to convince him to destroy the contract.
(Page 9)
- (2) Without full details of the costs of the proposed holiday, the Public Trustee regarded the request by FC for funds of $17 000 to be deposited into her account to be excessive.
(3) The Public Trustee reported some "third party insinuation" that FC was anxious to purchase realty in Queensland. The Public Trustee considered there to be insufficient funds for such a purchase.
33 The medical evidence indicates that FC is a person who suffers paranoia with some insight, and schizophrenia that is controlled on medication. While there is some variance in the views expressed by the medical practitioners who provided evidence for the Tribunal about the extent to which FC's mental illness impacts on her ability to manage her estate, the Tribunal concludes that the weight of the evidence supports a conclusion that the illness does affect her insight into her financial situation and this can and does result in poor financial choices. This conclusion is supported by the Public Trustee's evidence of poor budgeting and lack of insight into the financial repercussions of spending exhibited at times since the previous orders were made. Accordingly, the Tribunal finds that FC is a person who is unable, by reason of a mental disability, to make reasonable judgment in respect of her estate.
Need
34 As at 30 June 2004, FC's estate is comprised of the sum of $95 188.70 which is held in the Public Trustee's Common Fund. This sum represents the net proceeds of sale of a unit owned by FC. Her income is the Centrelink pension which, in July 2004, was $550 per fortnight (including rental assistance). Until December 2004, FC was managing her pension, which was deposited to her Westpac bank account. The Public Trustee was paying rent on FC's accommodation direct to the rental agent. The Public Trustee reported to the Board on 15 July 2004 that "other payments are made on an ad hoc basis subject to request and substantiation".
35 In her report of 15 July 2004, the Public Trustee reported that:
"(FC) has accepted responsibility for the management of her own Centrelink entitlement. Although she had a tendency to utilize the occasional credit card and layby facilities her expenditure is considered to be within reasonable limits. Unless medical evidence is provided to the contrary I would propose that any future appointment be restricted to a limited authority only. If the Public Trustee is to be reappointed I would
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- recommend that our authority be restricted to the management of funds currently held by this office on behalf of (FC)."
36 In her further report to the Board dated 17 September 2004, the Public Trustee detailed matters of concern relating to the administration of FC's financial affairs. One concern related to FC's request for funds to go on a South Seas cruise. Discussions were held with Dr Stampfer about whether it would be appropriate for the Public Trustee to release funds for the proposed cruise. A request from FC to the Public Trustee for $17 000 to cover expenses relating to the cruise was declined. Another concern related to FC's accommodation. The Public Trustee reports that, in consultation with FC, on 20 September 2004 she renewed the lease on FC's flat for a further three months. The Public Trustee expressed concerns in her report about "whether (FC) can or should accept responsibility for identifying accommodation needs suitable to her needs" and whether FC may require the appointment of a guardian for this purpose.
37 The Public Trustee concludes in her report of 17 September 2004:
"I would again contend that (FC) remains in need of an administrator. However I believe she is, within reasonable limits and giving due consideration to her willingness for independence and her financial status, capable of managing her own pension entitlements, which she has continued to do for several years. I would recommend the appointment of a limited administrator to manage the funds held in trust by the Public Trustee."
38 The Public Trustee prepared a report, dated 23 November 2004, for the hearing listed for 1 December 2004. In that report, the Public Trustee refers to the difficulty of formulating a financial plan in the absence of detailed information from FC as to her fortnightly expenses. The Public Trustee reiterated her recommendation for the appointment of a limited administrator.
39 By the time the Public Trustee prepared her report for the Tribunal hearing on 16 March 2005, there had been significant developments relating to FC. Details of these developments are set out in the report, which is signed and undated, but was received by the Tribunal on 14 March 2005. In this report the Public Trustee details the issues that have arisen since the September hearing. There is evidence that FC was
(Page 11)
- having difficulty budgeting prior to traveling to Queensland. The report states:
"…(FC) appears to have difficulty purchasing food. She advised me that whenever she ran out of money she would purchase health food bars on credit from the Chemist's and then pay the account on the next pension day. (FC) later denied having problems managing her pension, however, she spent $118.00 on food bars purchased through credit in September-October 2004."
41 The Public Trustee ascertained from Queensland police that when FC arrived in Burleigh Heads, Queensland, she evidently tried to rent a one-bedroom flat costing $290 per week. As she had no funds the police were called. The police assisted her by arranging motel accommodation for the night. The police officer reported to the Public Trustee that FC insisted that a Boystown lottery ticket would win her a unit, or the means to purchase one. The Salvation Army was contacted and they arranged for FC to travel to a Salvation Army hostel in Brisbane ("Pindari").
42 The Public Trustee ascertained that FC approached the Queensland Attorney General's office. She again expressed the belief that she would win a Boystown lottery. It is also reported that FC said that a unit would only cost her $20 000. The Attorney General's office determined there was no appropriate assistance they could give FC. FC also approached Centrelink at this time.
43 The Public Trustee's report states that, following discussions between the Public Trust Office, medical practitioners in Western Australia, the Adult Guardian in Queensland, staff at the Pindari hostel and staff at the
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- Royal Brisbane Hospital, arrangements were made by the Royal Brisbane Hospital for FC to be assessed by their acute care psychiatric team and she was admitted on Christmas Eve. The assessment resulted in the issue of a Community Treatment Order. FC was declared an involuntary patient. She remained under the Community Treatment Order and as an involuntary patient at the time of the hearing by the Tribunal. It appears that FC made known to the Queensland Mental Health Review Board that she wishes to travel to New Zealand but that request was declined by the Board.
44 The Public Trustee reports that, as a result of these developments, "it has become necessary to reassess the management of (FC's) finances at a high level". The Public Trustee expresses concerns about FC's apparent inability to budget. In a departure from earlier arrangements, the Public Trustee has assumed full control of FC's pension and is paying an allowance of $80 per week.
45 The Public Trustee expresses the view that she has extended every opportunity to FC to demonstrate her ability to manage her own affairs but concludes that "this ability has proved lacking". In her report she states:
"It seems as though (FC) is able, over the short run, to deal with some day-to- day expenses, evidence of the last few months has increasingly shown that (FC) is not capable of managing her own financial affairs in the long term and, at least during episodes, on a day-to-day basis. The difficulty for the Public Trustee is in being able to predict or analyse when she is acting during an episode and when she is reasonably settled."
46 Consequently, the Public Trustee recommends
"That the Public Trustee’s plenary authority be reaffirmed."
47 At the hearing on 16 March 2005, Dr PS expressed the view that his mother needs an administrator and supported the reappointment of the Public Trustee as plenary administrator.
48 The Tribunal finds on the evidence presented to the Tribunal, by the Public Trustee, that FC needs an administrator with plenary powers to manage her finances at this time. The evidence of the Public Trustee as to FC's spending of her pension and the lack of insight displayed, for example, by exhausting her fortnightly pension by purchasing an airline
(Page 13)
- ticket to Brisbane, supports the conclusion that FC is unable to budget for necessary expenditure.
Wishes of FC
49 The Tribunal received a letter from FC, dated 14 March 2005, advising that she cannot attend the hearing on 16 March 2005. In her letter she attributes her inability to attend the hearing to the fact that the Public Trustee has cut her allowance to $80 per fortnight. The Tribunal heard from FC during the hearing on 16 March 2005 by telephone. She expressed her belief that she is capable of managing all of her financial affairs and expressed in the strongest terms that that she should be permitted to so do. She seeks revocation of the administration orders. FC told the Tribunal that she was planning to arrange accommodation in Brisbane for a short time before she travelled to New Zealand. She stated that she would first need to satisfy the Queensland Mental Health authorities that she "could live in the community" and therefore did not need to be hospitalised.
50 Dr PS gave evidence that the family had lived in New Zealand about 45 years ago and that FC's daughter was born in New Zealand but other than that was unable to give any other information as to why his mother wanted to go to New Zealand.
Administrator
51 There is no close relative or other party available or willing to take on the role of administrator. Therefore the only suitable appointee is the Public Trustee.
52 The Tribunal orders:
(1) The order be confirmed.
(2) This order be reviewed by 16 March 2010.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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