KGQ (Administration)
[2021] TASGAB 9
•4 February 2021
CITATION: | KGQ (Administration) [2021] TASGAB 9 |
HEARING DATE(S): | 4 February 2021 |
DATE OF ORDERS: | 4 February 2021 |
DATE OF STATEMENT OF REASONS: | 18 March 2021 |
BOARD: | Mrs M Williams, Member Mr M Trezise, Member A/Prof J Breen, Member |
APPLICATION: | Application for Administration |
CATCHWORDS: | Administration – accommodation issues related to financial circumstances – least restrictive option – vulnerability to financial exploitation |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 3, 6, 51 |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purposes of publication |
STATEMENT OF REASONS
Background
The Applicant made an application for Administration in respect of Mr KGQ dated 11 September 2020.
The hearing of the Application was adjourned on 9 October 2020, with the Public Trustee (Tas) appointed as Administrator of the estate of Mr KGQ for the period of the adjournment and any subsequent adjournment. The adjournment was sought by the Legal Aid Commission of Tasmania (‘LACT’), acting on behalf of Mr KGQ, pending obtaining of an independent medical report by Mr KGQ, as he disputed the medical evidence before the Board. Mr KGQ has consulted a psychiatrist, Dr Anca Corbu, but he told the Board that her report is not able to be provided for a period of approximately six months, as time is required to them to be acquainted with each other and for her to make a comprehensive assessment. Therefore, on 11 January 2021 LACT, on Mr KGQ’s instructions, requested the matter to be listed and for the Application to be determined on 4 February 2021.
On 4 February 2021, the Guardianship and Administration Board (‘the Board’) found that Mr KGQ is a person with a disability, that he is unable, by reason of that disability, to make reasonable judgments in respect of his estate and that he is in need of an Administrator. Full terms of the Order made are set out at the conclusion of this Statement of Reasons.
Mr KGQ, via LACT, has requested a written Statement of Reasons in relation to the Board’s decision.
Hearing
The Board heard the Application on 4 February 2021.
In attendance at the hearing were:
a.Mr KGQ (the proposed represented person);
b.Mr Ewan Higgs, Housing Services Program Manager, Hobart City Mission (as substitute Applicant, as the applicant was on annual leave);
c.Mr Robert Wise, Baptcare;
d.Ms Jessica Watson, Public Trustee;
e.Ms Gabriella Harvey, Office of Public Guardian;
f.Mr Ben Harris, LACT; and
g.Mr Duncan Massey, Advocacy Tasmania.
The Board had before it the following documents:
a.Renewal of Emergency Administration Order dated 17 September 2020;
b.Application for Guardianship and Administration dated 11 September 2020;
c.Health Care Professional Report from Dr Megan McKeown dated 11 September 2020;
d.Health Care Professional Report from Dr Angela Retchford dated 27 August 2020;
e.Notice of Drug Dependency dated 26 July 2020;
f.Third Party Notification dated 9 September 2020;
g.Circular to pharmacies dated 18 August 2020;
h.Functional Tool Impact, Relationships Australia, undated;
i.Letter from Applicant to the Board, undated;
j.Letter from Ms Ford, undated;
k.Letter from Mr McGill dated 7 April 2020;
l.Letter from Mr Robert Wise dated 3 September 2020;
m.‘The Mercury’ newspaper article dated 9 March 2020;
n.Public Trustee report dated 16 September 2020;
o.Interim Administration Order dated 9 October 2020; and
p.Email from Mr Ben Harris, LACT, dated 11 January 2021.
Legislation
When the Board determines an Application for Administration Order it needs to be satisfied of the matters in section 51 of the Guardianship and Administration Act 1995 (‘the Act’). Those requirements are that the represented person:
a.is a person with a disability; and
b.is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
c.is in need of an administrator of his or her estate.
The Board must also balance the principles in section 6 of the Act, which are:
a.the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; and
b.the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
c.the wishes of a person with a disability or in respect of whom an application is made under this Act, are if possible, carried into effect.
An Administration Order may be made for a period of up to 3 years, unless continued under section 68 of the Act.
Disability
The Board had before it the Health Care Professional Report (‘HCPR’) dated 11 September 2020 from Dr Meg McKeown, General Practitioner (‘GP’), who had been Mr KGQ’s GP since 24 July 2020. In her opinion, Mr KGQ has two conditions related to alcohol use: alcohol related dementia and acquired brain injury, with those disabilities being moderate but deteriorating. In addition, Dr. McKeown states that Mr KGQ has a diagnosis of bipolar affective disorder, which has been evident since approximately 1999 (noted on previous GP records) with that disability being moderate and fluctuating.
The Board also had before it an additional HCPR from Dr Angela Retchford, Mr KGQ’s GP for approximately six years (prior to Dr McKeown). Dr Retchford also provides a diagnosis of bipolar affective disorder, and additionally, alcohol abuse/misuse with benzodiazepine dependence, with all disabilities having been evident for ‘years’.
Mr KGQ, in giving evidence and responding to questions from the Board, disputed the contents of Dr McKeown’s report, other than the diagnosis of bipolar affective disorder. He stated he had only seen Dr McKeown twice, and she has made many incorrect assumptions about him, resulting in the Administration application, his driver’s licence being suspended and difficulty collecting his medications (with reference to the Third Party Notification to Department of State Growth and the Drug Dependency Notice to pharmacies included in the Board papers above). He firmly disputes he has alcohol related dementia and acquired brain injury, or any current issues in relation to alcohol. He confirmed that he does have bipolar disorder, for which he takes medication (Seroquel 50mg slow release in the morning and 200mg a night). He disputed that he has benzodiazepine dependence, adding that up until recently he had been taking one Valium in the morning and two at night, but that his (now) GP has reduced that dose to two at night only. He does not take illicit drugs. He denied he is an alcoholic. He stated he enjoys drinking ‘once a fortnight or so’ but now drinks cider or beer, being ‘more mellow’ with his drinking compared to the past, when he drank spirits. He told the Board that he has been to ‘rehab and detox’ on three separate occasions, related to alcohol. He said that 15 to 20 years ago he was in a coma for about 23 days and almost died, and that this this was caused from having consumed three bottles of vodka each day.
Unable by reason of the disability to make reasonable judgements
Drs McKeown and Retchford outline in their respective HCPRs that due to the disabilities, Mr KGQ’s planning and reasoning skills, impulse control and susceptibility to influence are affected. Additionally, Dr McKeown notes that Mr KGQ’s expressive and receptive communication are affected. Both reports outline Mr KGQ’s vulnerability, that he is easily manipulated by others, easily coerced by others to give them money and his prescription medication. As a result, Mr KGQ has multiple debts and is essentially homeless (living in a van or emergency accommodation such as that provided by ‘Safe Space’).
The substitute applicant, Mr Higgs, gave evidence at the hearing that he has known Mr KGQ for approximately 12 months through the Hobart City Mission ‘Safe Space’ program, which he manages. Mr Higgs’ concern is that Mr KGQ is open to manipulation from others, particularly in relation to his finances, with the result that he does not have sufficient money to support himself, such as to buy food and register his van. Mr Higgs gave some examples of Mr KGQ’s decision making. Mr KGQ stated to him and others that he was staying at a Housing Tasmania premises, but in fact Mr KGQ had illegally parked his van outside at a Housing Tasmania premises in [a suburb in Tasmania] and was using an extension cord to access power from those premises. Mr KGQ, at other times, will state he is staying in shared premises but is unable to provide any detail of where and with whom. There is concern that he is sleeping in a van that is unregistered and his driver’s licence has been suspended, so he has no capacity to move the van without relying on acquaintances, which puts the van at risk of being towed away.
Mr KGQ gave evidence that his bipolar affective disorder does not affect his ability to manage his finances. He stated he is able to meet his debts through payment plans. The principal issue for him is that the Administrator takes his entire Centrelink payment, leaving him with insufficient funds to purchase food, cigarettes and meet his daily living expenses. In regard to whether he is easily manipulated by others, he stated ‘people sometimes take my kindness for weakness.’ but he has got better in not giving money to people. For example, if a person does not pay him back, he will now not lend them money again. An example given is that in the past his daughter has taken both his medication and money. He explained she is an ‘ice’ addict and that they no longer have any contact with each other.
Need for an Administrator
As to need for a substitute decision maker in relation to Mr KGQ’s estate, the HCPRs note there is a clear need for an Administrator in relation to all aspects relating to financial matters including day-to-day finances due to his vulnerability and the need to pay debts and ongoing day-to-day expenses. Similar concerns are noted in the Application.
Mr Higgs gave evidence that Mr KGQ has stayed overnight ‘on and off’ at the Safe Space premises over that period of time. He stated Mr KGQ can be too kind (referring to the manipulation by others which he has observed). In addition to the examples of Mr KGQ’s decision making (noted above), Mr Higgs explained to the Board that accommodation options for Mr KGQ are very limited as he has a much-loved dog, which restricts the available rental properties. Housing Tasmania properties are an issue as Mr KGQ has a debt with them. In summary, Mr Higgs stated that Mr KGQ remains vulnerable to financial exploitation and it is distressing at times to see Mr KGQ with no money because his acquaintances take advantage of him. In his view, Mr KGQ needs ongoing support for financial matters and decisions to enable him to get to where he wants to be in life.
In addition to a letter authored by Mr Robert Wise from Baptcare, dated 3 September 2020, Mr Wise gave evidence at the hearing that for 12 months Mr KGQ has been participating in Baptcare’s mental health program ‘Connections’. Over that time, they have met on a weekly to fortnightly basis. Mr Wise first met Mr KGQ in [the suburb in Tasmania], after he had moved out of a rental (that had not ended well). At that time Mr KGQ was living in a caravan with no heating, despite it being winter. Mr KGQ had needed crisis support (Baptcare is not a crisis support service) so Mr Wise has reached out to other agencies for assistance to provide emergency food relief, dog food, clothing blankets and support. Additionally, over the past 12 months, Mr KGQ has moved from one form of unstable accommodation to another and has had acquaintances who have taken or borrowed money from him, because of his susceptibility to influence. Mr Wise stated, at times, Mr KGQ’s decision making can compromise his own safety, providing an example of when he parked his van outside Housing Tasmania premises in [a suburb in Tasmania] and a significant crime occurred relating to that residence. The concern was that, by implication, Mr KGQ could have become involved in the Police investigation. Mr Wise stated that often Mr KGQ has no money, and he has been seen regularly begging outside supermarkets for money over the past few months.
Mr KGQ gave evidence that his position is that he wants to gain back control of the entirety of his Centrelink pension, that it is ‘impossible to live on $250 a week’ that the Public Trustee (‘PT’) give him out of his pension. He stated cigarettes alone cost him $120 per week. He said that he has been left so short of money that he has been begging, but only as a result of the PT not providing sufficient funds. Mr KGQ did agree that a ‘lump sum’ compensation payment (which he is to receive shortly from the State Government for unfortunate abuse he suffered at Ashley Boys Home) can be administered by the PT, as they are in a position to assist paying all outstanding debts from that sum. He stated that he sleeps in his van with his dog, and ‘lives rough’ but that will only be until his compensation payment comes through. With whatever amount of money is left in compensation after payment of his debts, he plans to buy a mobile van and a boat, retire and travel. He outlined to the Board that he has debts with Housing Tasmania, pharmacies and from penalties from court. He had arrangements with all debtors (except for Housing Tasmania) on payment plans before the Administration Order was in place, so there was no need for PT to become involved or to continue to be involved in his day-to-day finances. In his view the PT have been paying out ‘bulk money’ for these fines and debts, leaving him with a small weekly payment, whereas he would have put each debt on a different, lesser payment plan.
Ms Watson, (PT), in addition to the PT report included in the Board’s papers, advised in relation to the compensation payment, their office has been contacted by personnel from the Redress scheme and the matter is in the final stages. As of the date of the hearing an offer was being prepared, with three components: compensation (an unknown but not insignificant amount); an apology; and an offering of counselling and psychological services. Ms Watson clarified that Mr KGQ (since January 2021) has had an increase in weekly payment from $250 to $300. In terms of decisions made on behalf of Mr KGQ, PT have recently paid registration fees and for a radiator for the van, and on an ongoing basis, PT also pays Telstra accounts, the chemist account (not yet cleared) and penalty payments ($25 per fortnight). There are ongoing frequent requests from Mr KGQ for additional funds in respect to tobacco and alcohol. She considers there is an ongoing need for an Administration Order. In relation to the weekly payments, Mr KGQ struggles to make the payment last longer than a few days and there is a clear need to continue to meet bills and debts. In relation to the compensation payment, an administrator is required to pay out all outstanding debts, and to support his plans in relation to the balance of the funds in the future.
The Office of the Public Guardian (OPG), Ms Harvey, submitted there is no current decision-making role for OPG. Mr KGQ’s ongoing needs regarding accommodation relate to financial matters that are more suitably dealt with by the PT.
Mr Harris on behalf of Mr KGQ submitted that:
a. There is no need for appointment of a Guardian in relation to accommodation matters as Mr KGQ’s issues are financially based;
b. There is no need for appointment of an administrator in respect to the Centrelink portion of administration as Mr KGQ has taken steps and laid out plans to manage his Centrelink benefit in way that would be able to manage his day to day needs and meet his debts by payment plans; and
c. He does see a need for an Administrator in relation to administration of the forthcoming compensation payment.
Similarly, Mr Massey, submitted on Mr KGQ’s behalf that:
a.Mr KGQ is keen to impress on the Board that although he has been ‘an easy touch’ when it comes to lending money and choosing his acquaintances in the past, he has taken steps to ensure this no longer occurs;
b.Mr KGQ very much wants to be released from the auspices of the PT in relation to his fortnightly Centrelink pension and wants to be in charge of his own money as he receives insufficient funds to meet his day to day needs; and
c.Mr KGQ is not concerned as to the prospect of Administration of his compensation payment.
Determination
Is Mr KGQ a person with a disability?
Based on the medical evidence contained in the two HCPRs at hearing, the Board is satisfied that Mr KGQ is a person with a disability as defined in section 3 of the Act. The diagnosis of bipolar disorder is not disputed. On the evidence, there is a clear history of extensive alcohol use in the past, which both GPs noted that has caused disabilities. At the time of the hearing there was no medical evidence to the contrary regarding alcohol misuse causing disability.
Is Mr KGQ unable, by reason of the disability, to make reasonable judgements in respect to his estate?
The overwhelming, indeed only, evidence placed before the Board is that, by reason of the disability, Mr KGQ is unable to make reasonable judgements in respect to his financial circumstances/estate. Mr KGQ remains vulnerable to financial exploitation as a result of his disability, which affects his ability to make reasonable judgements in respect to financial matters.
Is there a need for appointment of an Administrator?
The Board found that there is a clear need for current decisions to be made for Mr KGQ related to day to day and other financial matters. Mr KGQ’s stated views are that he wishes to regain control of his Centrelink pension fortnightly payment, but that the Administrator would be of assistance in relation to the pending lump sum payout. The Board acknowledges that Mr KGQ has taken positive steps to avoid manipulation by others. He is personable. He is now clearly on a much better life trajectory. Nonetheless, the weight of evidence is that there is a cogent and ongoing need for the appointment of an Administrator due to Mr KGQ’s ongoing vulnerability to financial exploitation, the need to ensure that Mr KGQ’s outstanding debts and accounts are paid and to ensure Mr KGQ’s compensation payment is safeguarded.
In these circumstances, the Board considered that it is in Mr KGQ’s best interests that there is an Administrator appointed and that a plenary Administration Order is required. There is no need for a Guardianship Order in relation to accommodation. There are no current decisions to be made in respect to accommodation and accommodation issues are largely related to Mr KGQ’ financial circumstances.
Length of Order
The Board considers that given Mr KGQ’s compensation payment is imminent, (which may well go towards assisting with payment of his outstanding debts and therefore assist with ongoing accommodation issues) and that Mr KGQ is obtaining an independent medical opinion (which may take a period of six months) the least restrictive option is to make an Administration Order of significantly shorter duration than the maximum three-year period allowed under the Act. Therefore, the Board determined that the appropriate length of the Administration Order is just six months.
Orders
1.The Public Trustee (Tas) is appointed as Administrator of the estate of Mr KGQ.
2.This Order remains in effect until 3 August 2021.
********
0
0
1