HM
[2013] QCAT 351
•16 May 2013
| CITATION: | HM [2013] QCAT 351 |
| PARTIES: | HM |
| APPLICATION NUMBER: | GAA2939-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 16 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julia Casey, Member |
| DELIVERED ON: | 16 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for a declaration about the capacity of HM is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – where declaration sought that adult had capacity for financial decisions – where evidence from medical reporters of capacity – where evidence based on actual financial dealings with adult contradicted medical evidence – where medical evidence not preferred Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| HM |
| Susan Blackburn, representative of The Public Trustee of Queensland |
REASONS FOR DECISION
History of the Application
HM is a 55 year old man who has been diagnosed with a mental illness.
In 2011 he was admitted to the mental health unit of the Prince Charles Hospital and was made subject to an involuntary treatment order under the Mental Health Act 2000. His treating team made an application to the Tribunal for the appointment of an administrator for HM and on 30 January 2012, when HM had been discharged from hospital and was living in supported accommodation, the Tribunal appointed the Public Trustee of Queensland as his administrator for all financial matters.
HM continued to receive treatment for his mental illness and later obtained rental accommodation at Bridgeman Downs for 12 months. The involuntary treatment order was revoked in November 2012.
On 13 March 2013 HM made an application to the Tribunal for a declaration of capacity for financial matters.
In accordance with the legislation the Tribunal must determine HM’ capacity to make decisions about his financial matters.
The Guardianship and Administration Act 2000 (the Act) defines capacity as: ‘“capacity” for a person for a matter, means the person is capable of understanding the nature and effect of decisions about the matter; and freely & voluntarily making decisions about the matter; and communicating the decisions in some way’. If any of these elements is missing, a person has impaired capacity.
The Tribunal had the benefit of written medical evidence and oral evidence.
A report dated 18 October 2011 by Dr Maria Taylan, psychiatry registrar at the Prince Charles Hospital’s Mental Health Unit provides that at that time HM was receiving inpatient treatment, inclusive of depot and oral anti-psychotic medication, for bipolar affective disorder (BPAD), (especially mania), and that he was subject to an involuntary treatment order under the Mental Health Act 2000. The doctor states that HM’s medical history includes substance abuse and non-compliance with medication, and that when manic HM had engaged in risk-taking activities and over-spending behaviours. Dr Taylan stated that HM achieved a score of 23/30 on the Mini Mental State Examination administered on 18 October 2011. She provided the opinion that HM was vulnerable to financial exploitation as he had recently ‘given $118,000 to a mail order bride’ in an internet ‘scam’ and that he was able to make simple, not complex, financial decisions.
Against this, however, is the evidence of Dr Malcolm Nyst, a general practitioner and Dr Johann Scheepers, the adult’s current treating psychiatrist.
In a letter dated 10 January 2012 Dr Nyst, who had known HM since November 2011 when he began visiting the adult to provide medical services, provided the opinion that although HM displayed some rigidity and poverty of thought, he was ‘psychiatrically well’ and was ‘able to make informed decisions on all aspects of his life’.
In a document faxed to the Tribunal on 5 April 2013 Dr Scheepers states that HM has been under his care since July 2012. He stated that while HM had been treated by doctors and The Prince Charles Hospital for BPAD and alcohol dependence, since transitioning his care the adult’s diagnosis has been adjusted to substance induced mood disorder (alcohol causing BPAD symptoms) with co-morbid generalized anxiety disorder.Dr Scheepers submitted that since the adjusted diagnosis and a change in medication HM has completely recovered his normal level of function, he is no longer on depot medication and the involuntary treatment order has been revoked.Dr Scheepers provides the opinion that although he does not believe HM has recovered to the point where he could manage the strains of work, he does however have the capacity to manage his own financial affairs.
The Tribunal obtained oral evidence in relation to the adult’s financial decision-making capacity at the hearing.
HM told the Tribunal that in the past he had been acutely unwell and that his illness had not been properly managed. He acknowledged that when he was unwell he had lost between $150,000 and $200,000 via the internet. He stated that he had not used alcohol for nine months and he has no desire to start using alcohol again. He said he is more knowledgeable about his mental illness, and that he is adhering to the treatment for his mental illness as recommended by his treating psychiatrist, which includes attending appointments with his treating psychiatrist once per month and taking mood stabilizing medication daily. He provided the opinion that his mental state is ‘stable’, and that he is ‘fully recovered’ and that he has regained full capacity to act rationally and with proper insight.
HM was aware he received approximately $10,000 per month from Income Protection Insurance, and that the payment is indexed to increase annually. He said he continues to liaise with an insurance broker who was associated with the choice of this insurance policy, and that recently the broker advised that HM would be receiving the income from this policy on a quarterly, not monthly, basis.
HM could identify and value most of his assets which include a superannuation fund of $101,000, cash assets held by the Public Trustee of Queensland in a cash account and a term deposit, along with three savings accounts with one bank, an account with another bank, a vehicle, house contents and personal effects. His estimation of the value of his motor vehicle was $20,000 higher than that of the Public Trustee of Queensland. He has no liabilities.
HM advised the Tribunal that he had recently relocated to rental accommodation at the Sunshine Coast. He said he initially planned to move to the Sunshine Coast in the context of his plan to purchase a particular property in Noosa which he believed was listed at less than its true value. HM said he had engaged in discussions with an advisor from a superannuation firm, as he wanted to use $90,000 of his superannuation funds as a deposit. He said the advisor told him to ‘be careful’ and recommended he talk with another investment broker. HM said he also had discussions with bank staff in relation to obtaining a loan for the purchase of the property. HM said ‘it was all becoming too hectic’, and ‘things were happening too quickly’ and that he needed to ‘step back’ and ‘relax’. He said he made the decision to ‘stabilize’ and ‘get myself calm’ and to rent for 12 months before deciding whether or not to invest in a residential property.
HM stated under the current arrangements with the administrator he attends to most of his living expenses and that he has lived frugally, by paying minimal rent and by spending $30 per week for food. He said that having lunch every day at his parents’ home in Brisbane over the past year had assisted with keeping his food bill to a minimum, and that although he would no longer be able to lunch daily with his parents he has found cheaper rental accommodation in Noosa. He told the Tribunal he had saved approximately $6000 of the living expenses allocated to him by the administrator to pay for a trip to Tasmania to visit family members. This included $1500 that was used to purchase a vehicle for his son.
HM told the Tribunal he wanted to continue to save by keeping rent and food expenses to a minimum. HM advised the Tribunal he wants to obtain a ‘basic pilot’s licence’ at the Sunshine Coast and estimates this to cost $6000 – at $120 per hour. He also said he was ‘looking for a lady on the internet’.
In her evidence to the Tribunal the representative of the Public Trustee of Queensland advised that the adult’s income from the insurance policy will continue until HM is 99 years of age, and that the income is dependent upon ongoing statements supplied by his treating doctor/s. The administrator is investigating the possibility of an additional superannuation policy and has attended to the adult’s tax returns. The adult’s estimated annual surplus is $31,000.
The representative submitted that HM has contacted the administrator on a weekly basis, and that the administrator has been providing HM with living expenses totaling $290 per week in amounts of either $50 or $90 five days per week. The representative stated that while the administrator has facilitated payment of some bills, the adult has attended to all other financial needs, including groceries, transport costs, vehicle running costs, clothing and telephone. Recent expenses paid by the administrator include a payment for legal costs of $8910 as HM was required to defend criminal charges in the Magistrates Court. The administrator has also facilitated payment for repairs to HM’s motor vehicle on two occasions.
The representative advised that HM told the administrator one month ago about his plan to purchase the Noosa property that was listed at $419,266, and that he wanted to contribute $91,000 from his superannuation fund, and take out a loan for $328,000. The representative said that HM did not appreciate the full nature of his financial obligations under the plan as he did not identify set up expenses, interest considerations, loan repayments and fees, (including body corporate and legal fees), in discussions with the administrator.
The Tribunal observes the medical evidence of Dr Nyst and Dr Scheepers is variant to the evidence of HM and the representative of The Public Trustee of Queensland.
The Tribunal places greater weight on evidence that includes observation and description of the manner in which HM attends to his day to day finances, income and investments.
On balance, the Tribunal finds that while Dr Nyst and Dr Scheepers may have concluded that the adult has the ability to manage his financial decisions, the evidence of HM and the representative of The Public Trustee of Queensland does not, on any reasonable or objective basis, justify such a conclusion.
The Tribunal recognises that HM has a mental illness that requires treatment. He has engaged with his treating psychiatrist and has voluntarily adhered to the treatment protocol. HM’s income from the income protection policy is dependent upon information supplied to the insurance company by his treating doctor/s.
HM has not had the opportunity to demonstrate he can manage large sums of money provided to him, on an infrequent basis, and to budget for all expenditure. The evidence is that the insurance company will now provide the adult with income on a quarterly basis and therefore the adult is likely to receive approximately $30,000 in four payments each year. HM has not been attending to all of his bill payments and he has been receiving funds for living expenses from the administrator five out of seven days per week. The Tribunal observes HM has been able to save up to $6000 from money allocated for living expenses, however in order to save this amount he has relied on the assistance of his parents for one meal a day and has outlaid minimal amounts of expenditure for necessary items such as accommodation and food.
HM has exhibited vulnerability to financial exploitation in the past when he lost at least $118,000 through an internet scam when he was seeking companionship. As HM told the Tribunal he is again seeking companionship via the internet he remains financial vulnerable.
When HM attempted to purchase the unit at Noosa he based his calculations on the listing price alone. He did not demonstrate an appreciation of the full nature of all initial costs and fees, along with loan repayments (including interest) and ongoing financial obligations associated with the property purchase. He was therefore unable to formulate a budget to meet his complex financial obligations along with his day-to-day needs.
The Tribunal makes findings that HM has substance induced mood disorder (alcohol causing bipolar affective disorder symptoms) with co-morbid generalized anxiety disorder, and that he is voluntarily accepting treatment for his mental illness that includes adherence to medication and engagement with his treating psychiatrist.
The Tribunal finds that the evidence establishes that, due to his mental illness, HM cannot understand the nature and effect of decisions about his financial matters.
He is vulnerable to financial exploitation.
The Tribunal is satisfied that HM does not have capacity to make decisions about his financial matters.
The Tribunal is satisfied that the presumption contained in the Act, that HM has capacity for financial matters, is rebutted.
The Tribunal therefore dismisses the application for the declaration of capacity for financial matters for HM.
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