JH and EP
[2010] WASAT 51
•13 APRIL 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JH and EP [2010] WASAT 51
MEMBER: MS S GILLETT (MEMBER)
HEARD: 19 JANUARY 2010
DELIVERED : 13 APRIL 2010
FILE NO/S: GAA 3093 of 2009
BETWEEN: JH
Applicant
AND
EP
Proposed represented person
Catchwords:
Administration - Need for an administrator - Need for protection
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b)(iv), s 64(1), s 64(1)(a), s 70
State Administrative Tribunal Act 2004 (WA), s 78
Result:
The Public Trustee is appointed plenary administrator for one year
Category: B
Representation:
Counsel:
Applicant: Self-represented
Proposed represented person : Self-represented
Solicitors:
Applicant: Self-represented
Proposed represented person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
EP is a 65yearold single woman with a longstanding diagnosis of a mental illness (bipolar affective disorder). An application seeking the appointment of an administrator was made by JH, a social worker with a metropolitan mental health unit, following the woman's admission to hospital due to relapse in her mental illness.
The woman's estate consists of her unencumbered home unit, her car which is advised to have a value of $1,000, various debts which total approximately $17,000 and her entitlement to an age pension.
The applicant submitted to the Tribunal that the woman's estate was at risk due to the impact that her mental illness has on her decisionmaking capacity and in particular, on her increasing level of indebtedness. The treating psychiatrist (Dr R) stated that the woman suffers manic relapses with psychotic symptoms and that she lacks insight as to the likely consequences of her financial problems.
The woman did not accept that she was unable to manage her own financial affairs and she was strongly opposed to the appointment of an administrator.
The Tribunal decided that the woman's estate was at significant risk and that it was in the best interests of EP that the Public Trustee be appointed administrator to negotiate with the various credit providers and to take steps to protect her estate.
The appointment was made for one year.
Background
An application was lodged by JH in late November 2009 for the appointment of an administrator for EP (proposed represented person), pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act). EP is a 65yearold single woman with a longstanding diagnosis of a mental illness (bipolar affective disorder).
This application, seeking the appointment of an administrator, was made whilst EP was in hospital and after she had been admitted to a mental health unit suffering psychotic symptoms. The applicant, JH, a social worker with the mental health unit, submitted that EP experienced agitation, anxiety and thought disorder, delusions and impulsivity associated with bipolar affective disorder, and that her estate was at risk due to her impaired judgement.
The hearing of the application on 19 January 2010 was attended by JH, EP, JK representing the Public Advocate, and VS, the proposed represented person's recently appointed case manager, who attended the hearing solely to support EP.
Brief oral reasons for the decision of the Tribunal in respect of the application for administration made by JH were delivered at the conclusion of the hearing on 19 January 2010. These written reasons are provided at the request of EP, pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
Relevant legislation
Before it can appoint an administrator, the Tribunal must be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and is in need of an administrator (s 64(1) of the GA Act).
Mental disability is defined to include dementia, acquired brain injury, psychiatric illness and intellectual disability (s 3 of the GA Act).
Principles to be observed
The determination of capacity and need is made subject to the principles of the GA Act, as set out in s 4. As they apply here, they are:
•The Tribunal's primary concern must be EP's best interests;
•EP is presumed 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;
•An administration order shall not be made if EP's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action; and
•In considering any matter relating to the person, the Tribunal must, as far as possible, seek to ascertain her views and wishes.
Evidence provided to the Tribunal prior to the hearing
In addition to the written application, the following written information was provided to the Tribunal prior to the hearing:
•A report from Dr R, the psychiatric registrar at the mental health unit, dated 28 October 2009, which states that EP suffered with 'bipolar 1 affective disorder manic relapses with psychotic symptoms', and that her impairment was 'fluctuating' with 'poor prognosis. Dr R assessed EP as incapable of making reasonable decisions in relation to her financial affairs and incapable of executing a valid enduring power of attorney. Dr R further stated that EP 'has accumulated considerable debts … over time and she finds it difficult to manage her finances putting herself at risk of bankruptcy. … has no insight into the extent of the problem and thinks she can manage it. But she has not been managing well at home and it was observed that she did not even have food.'
•A report from JH, mental health unit social worker, dated 25 November 2009, which states that EP has contact with, and receives support from, her sister and two cousins. In respect to decisions about financial matters, JH states that EP 'acts impulsively', 'is unable to live within her means and creates debt', and 'enters into financial commitments without regard as to how she will repay. She has unrealistic expectations of repaying debts ie. of going back to work [and] as a result her assets are at risk'.
•An undated financial statement which sets out various credit facilities and detailing a number of payments made by direct debit.
•A letter from GP, sister of EP, dated 12 January 2010, which states that EP purchased her home unit outright in 1989 with monies bequeathed by her mother and a loan of $15,000 from GP. Repayment of this loan was understood to be dependent on EP having regular work and whilst an amount of about $6,000 was repaid, further repayments were not sought or expected. GP refers to two occasions prior to 2009, when EP was under stress due to increasing debt and this had contributed to her becoming unwell. On the latter occasion in 2004, a oneoff payment was made by GP to clear a credit card debt of $5,000. GP states that financial assistance has been provided to EP on a regular basis by way of gifts amounting to $1,500 per annum. Whilst indicating that the family are willing to continue to provide some financial assistance, GP states that she supports the appointment of an administrator to protect EP's financial position and to assist with her overall health. GP further stated that although she is unaware of EP's level of debt, she has been concerned when EP has complained of being hungry and not having enough money to buy food.
•A letter from PW, cousin of EP, dated 14 January 2010, which states that EP is very independent and unwilling to confide in anyone about her increasing financial problems. PW expresses her concern that EP's health and wellbeing are adversely affected by the stress associated with her financial problems and that her home may be at risk if her debts are not resolved.
•A letter from EP, dated 13 January 2010, with an attached budget schedule. EP acknowledges that she has financial problems, however identifies the cause of these problems as being due to the inadequacy of her income and her difficulties in obtaining paid work. EP states that she is strongly opposed to the appointment of an administrator and that she is able to manage her own finances and make her own decisions. In respect to her mental health, EP suggests that she has been given inappropriate and unsuitable medication which has adversely affected her and further, that she suffered 'trauma' as a result of her consultation with a psychiatrist, which she states 'is not mental illness'.
•The discharge summary from the mental health unit (following EP's discharge on 22 December 2009) records her initial admission as a voluntary patient and the subsequent change in status to being made an involuntary patient after exhibiting psychotic symptoms. During the admission, EP expressed paranoid delusions concerning her neighbours and family members, was reluctant to take some prescribed medications, expressed unrealistic expectations of returning to work despite a long period out of the workforce, was agitated and disorganised and placed herself at risk by wandering off the ward. EP's diagnosis was revised to schizoaffective disorder - manic with psychotic symptoms. The summary states that EP became more settled and less agitated and the thought disorder gradually resolved following changes to her medication. EP was discharged home with close followup through a community support program.
•The report from the Public Advocate, dated 14 January 2010, which addresses EP's views and wishes in respect to the application and sets out the Public Advocate's view that an administrator is needed to manage EP's income, expenditure and provide for her comforts. As EP stated that she was opposed to the application, it was suggested that she may wish to contact the Mental Health Law Centre to see if she could be represented at the hearing, and she was asked whether she wished to seek a second opinion from another doctor. EP informed the Public Advocate that she had approached a community law centre about her financial difficulties and had been advised that they could not do any more than what was already in place.
Hearing
EP acknowledged that she had a 'health problem', however she expressed her view that her financial circumstances were totally unrelated, as set out in her letter to the Tribunal dated 13 January 2010. EP stated that her debts were manageable and that her family's interest in her financial position was motivated by their future interest in her 'bequeathed estate'. EP confirmed that she owed about $17,000 on a personal loan and credit cards, and she said that she was in the process of negotiating to obtain a new credit card at a lower interest rate which she could then use to pay out some of the existing debts.
The Tribunal heard from JH that EP's admission to hospital was precipitated by the community mental health nurse's concerns that EP was not managing her money well enough to have food in the house. During the admission to the mental health unit, attempts by the welfare officer to assist EP with organising her debt proved unsuccessful due in part to EP's unwillingness to disclose her financial position. The medical team considered that financial stress was a contributing factor to the deterioration in EP's mental health and to her hospitalisation. JH further stated that the medical team were concerned that EP's property may be at risk due to her impaired judgement.
JK, representing the Public Advocate, submitted that there existed a significant risk to EP's property as a result of the present level of debt and the pattern of managing this debt by juggling her finances through the use of credit cards. The appointment of the Public Trustee as plenary administrator was proposed by the Public Advocate, and it was submitted that an administrator could investigate and advocate on EP's behalf in respect to the recovery of debts and in particular, to seek waiver of the interest payable on outstanding debts.
Findings and reasons
I must first decide whether EP is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or part of her estate (s 64(1)(a) of the GA Act). A person is presumed to be capable of making reasonable judgments until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)(iv) of the GA Act).
Thus, the determination of whether EP is someone for whom an administration order may be made involves finding the presence of a mental disability and deciding the extent to which that disability impacts on EP's ability to make 'reasonable judgements' about her estate.
I accept the evidence of Dr R that EP has a psychiatric illness, the diagnosis of which was stated to be 'bipolar 1 affective disorder manic relapses with psychotic symptoms' in the Doctor's Guide of 28 October 2009 and subsequently, 'schizoaffective disorder manic with psychotic symptoms' in the discharge summary.
I find that it is highly likely that stress associated with financial concerns is a contributing factor in EP becoming unwell and that when unwell, the nature of EP's illness results in her judgment becoming more impaired. I am satisfied that EP's estate is at risk due to her longstanding psychiatric illness. There are a number of factors which lead me to reach this conclusion:
•The nature of EP's illness is fluctuating and there is a strong likelihood of relapses according to Dr R's opinion and evidenced by EP's past medical history.
•EP does not accept that her psychiatric illness impacts on her judgment in respect to financial matters or that stress related to her financial position may contribute to her becoming unwell.
•EP maintains unrealistic expectations that she will reenter the paid workforce, despite it being many years since she was employed. The reason given by EP for having to live on income support payments for many years is that she has been prescribed incorrect medications for her illness.
•The increased level of debt incurred by EP cannot be sustained, given her present income, and poses a significant risk to her home, which is currently unencumbered and which is critical to her future security and wellbeing.
I am satisfied on all of the evidence that EP is unable, as a consequence of her psychiatric illness (mental disability), to make reasonable judgments in respect to her estate.
I am further satisfied that EP is in need of an administrator. No evidence was provided as to any alternate means by which EP's estate could be protected, and attempts to obtain assistance with managing the present level of indebtedness in a less restrictive manner have been unsuccessful.
I accept that EP wishes to remain as independent as possible and that she feels her rights would be unnecessarily restricted by the order for administration. I am of the view, however, that it is in the best interests of EP that an administration order be made for the protection of her estate in order that her current and future needs are properly met.
In view of the effect of the order and the restriction that it places on EP, the administrator's attention is directed to the provisions of s 70 of the GA Act which sets out some of the factors that an administrator must take into account in forming an opinion as to the best interests of a represented person. This section, which is reproduced in full below, expresses the need for the administrator to strike a balance between the person's right to function autonomously in the community and the proper protection of a person's estate.
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
Conclusion
For the reasons set out above, the Tribunal finds that there is no less restrictive alternative to the making of an administration order and appoints the Public Trustee as plenary administrator for EP for a period of one year. A review of the order, at the conclusion of this one year period, will then allow a new assessment to be made as to the course of EP's illness and the extent to which this impacts on her ability to manage her estate.
Order
1.The Public Trustee is appointed plenary administrator of the estate of the proposed represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The order is to be reviewed by 19 January 2011.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, MEMBER
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