MEH
[2005] WASAT 35
•21 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MEH [2005] WASAT 35
MEMBER: DR G HAMILTON (SENIOR SESSIONAL MEMBER)
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
HEARD: 7 OCTOBER 2004
DELIVERED : 21 MARCH 2005
FILE NO/S: BA 457 of 2004
BETWEEN: MEH
Applicant
Catchwords:
Administration - Mental illness - Capacity - Need
Legislation:
Guardianship and Administration Act 1990 (WA) s 4(2)(b), s 40, s 64, s 65
Result:
The Public Trustee is appointed plenary administrator for the period of one year
Category: B
Representation:
Counsel:
Applicant: Self Represented
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
DR G HAMILTON (SENIOR SESSIONAL MEMBER), MR E LEIPOLDT (SENIOR SESSIONAL MEMBER), MR J JAMES (SENIOR SESSIONAL MEMBER)
REASONS FOR DECISION
Background
These reasons are provided under the jurisdiction of the newly formed State Administrative Tribunal, into which the former Guardianship and Administration Board was recently absorbed. The former Guardianship and Administration Board received an undated letter from the represented person, MEH, on 18 October 2004. In it he expressed his concerns about "what was written in the order about" him. He questioned whether the doctors who made assessments about him understood him or knew him and he wanted his "independence". The Board interpreted this letter as his request for reasons for the decision.
MEH, at the time of the hearing of the 7 October 2004, was a 37‑year‑old single man and carpenter by profession. He was first diagnosed with paranoid schizophrenia in 1989. MEH had been hospitalised at Graylands Hospital in 2004 and was currently an outpatient at Alma Street Centre.
This hearing, on an application at the instigation of the Board, reviewed the decision made by the Guardianship & Administration Board on 14 November 2003 under s 65 of the Guardianship & Administration Act 1990 (WA) ("the Act"), where the Public Trustee was appointed Limited Administrator of MEH's estate.
By this order the Public Trustee was authorised to:
(i)to operate all or any of the represented person's bank accounts;
(ii)to demand, receive and recover income of and moneys due or that become due to the represented person;
(iii)to pay any debts of, and settle or compromise any demand made by or against the represented person or against the estate;
(iv)to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person or any person wholly or partially dependent on the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable;
(v)to enquire of any financial institution or other organisation or individual as to the extent, particulars and whereabouts of assets held on behalf of the represented person , whether in safe custody or otherwise.
The Board required the Public Advocate to attend the next hearing and to investigate and report to the Board in writing as to whether MEH is a person for whom a declaration under s 64 could be made and whether he is in need of an administrator. If so, who should be the administrator, and to investigate and report on any other matter that the Public Advocate considered relevant.
Section 65 is an emergency provision in the Act which allowed the making of an order "to make immediate provision for the protection of the person's estate", "pending the determination of the question whether the person is, in fact, a person in respect of whom a declaration should be made" under s 64(1).
Section 64(1) allows the making of an administration order where the Board is "satisfied that a person in respect of whom an application for an administration order is made under s 40:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate;
(b)is in need of an administrator of his estate."
SN, of Swan Mental Health Services made the original application for an administration order, dated 16 September 2003. In that application MEH was described as a person who had chronic paranoid schizophrenia, with "a history of using cannabis and spending approximately $300 per week on this drug." Further it was alleged MEH had debts in excess of $40,000 which was accumulating interest. It stated that in view of MEH's "poor decision-making skills and an inability to manage his money … it is inevitable that MEH will continue to make poor decisions regarding his finances which will in turn create further debt." At the time of that application MEH was hospitalised "for relapse of a psychotic disorder". Only the applicant, SN, was present at this hearing.
MEH did not attend the hearing in 2003 in person but telephone contact was made with him on his mobile phone. MEH stated that he was able to manage his finances, he was working and paying off his debts with the assistance of a financial planner and did not need an administrator. The medical information before the Board at that time, regarding his capacity to make reasonable decisions about his finances was insufficient. The order of 14 November 2003 therefore sought to protect MEH's assets while obtaining further information concerning his capacity to manage them.
Therefore the issue before this Board on 7 October 2004 was to determine whether MEH was capable of making his own decisions about his estate; if not, whether there was a continuing need for an administrator and, if so, who the administrator should be.
Present at this hearing were JK, MEH's advocate per delegation from the Public Advocate and TT, Public Trust Officer. The Board had attempted to have MEH available by telephone. JK reported her own difficulties in making contact with MEH. It had been difficult to make contact face to face and most contact between her and MEH had been by telephone.
Capacity
Pursuant to s 4(2)(b) of the Guardianship and Administration Act 1990 (WA) the Board is required to presume that MEH is a capable person until the contrary is proved to the satisfaction of the Board.
Pursuant to s 64(1)(a) the Board must be satisfied that a Proposed Represented Person is unable, "by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate," before making an administration order.
Evidence
The Board had before it the following information in relation to MEH's capacity to make decisions about his estate:
•Dr SY is Hospital Medical Officer at Swan District Hospital. He stated that he had known MEH 0.06 years at the time of his report and was his current medical attendant. His report was dated 11 September 2003 and he had last seen MEH on that date. He reported that MEH had an impairment of his cognitive ability or mental function, caused by paranoid schizophrenia. This condition was first recognised in 1989 and was of a fluctuating and chronic nature. Dr SY agreed that MEH was capable of making reasonable decisions with regard to his health care (includes medical and dental treatment and consent, as well as self-care) and living situation (includes routine household decisions and accommodation issues). Dr SY reported that MEH was incapable of making reasonable decisions about his financial affairs. He stated that MEH had "accumulated debt due to poor judgement". His further observations on capacity were MEH's "impaired insight and judgement [and] thought disordered. Hallucinations, delusions." SY did not believe MEH could make an Enduring Power of Attorney.
•SN was the applicant and is a social worker with Swan Valley Centre. MEH was hospitalised at the time of the application for reason of a relapse in his psychotic disorder. Her report confirmed that MEH had chronic schizophrenia. He had poor insight into his illness. He was unable "to manage any day to day budgeting decisions and needs help with managing large amounts of money". MEH had a debt of $40,000. "The safety and wellbeing of M's finances is at risk because of his inability to make reasoned decisions". She recommended that a limited administrator be appointed.
•The Public Advocate's representative JK, in her report of 6 October 2004, presented evidence of her discussions with Dr Addis, MEH's regular treating psychiatrist, on 22 September 2004. This doctor reported that "Mr MEH was admitted to hospital earlier this year and has not recovered well since then. His capacity and functioning have decompensated". The doctor believed MEH did not have capacity to make financial decisions and thought the administration order should remain in place. Dr Addis had not submitted a written report. JK also spoke with AB, a community mental health nurse with Alma Street Centre, where MEH remained an outpatient. She "reported on the 6 October 2004 that MEH was not compliant with his treatment, is evasive and has refused assistance from health professionals".
•The Public Trustee's officer, TT, in her report dated 7 October 2004 reported that it had been difficult to locate MEH. Contact had been intermittent through correspondence only. Once MEH was admitted at Graylands Hospital regular contact was maintained. TT reported that MEH was on a Newstart Allowance which was sufficient only to cover his daily expenses. There was no capacity to pay off his debts, totalling $42,497 and assets of $6014 including his superannuation fund of $4832. There was a claim on his estate of about $7000 for child maintenance. MEH refused to receive a Disability Support Pension as he felt he was capable.
•A discharge summary from Dr S, a registrar in psychiatry and Dr CS, consultant psychiatrist at Graylands Selby-Lemnos & Special Care Health Services, dated 8 July 2004. MEH had been apprehended by police on private property. The "presenting complaint" was that MEH was "in a state of self-neglect, thought-disordered and dehydrated having walked bare-foot throughout various areas of Perth in the four days since his discharged [sic] from Graylands". He was said to have "no insight and poor judgement." "His mental state improved very slowly" during this admission. Similar behaviour to that observed during admission "was indicative of relapse in the past". However, until last year, MEH had had a "long period of remission, with good functioning, holding paid employment and maintaining meaningful relationships". MEH had refused to participate in any psychometric testing. The report did not comment on MEH's capacity to make reasonable decisions about his finances.
JK stated at the hearing that MEH resided in rental accommodation. He was currently on a Community Treatment Order under jurisdiction of the Mental Health Review Board. AB, the community mental health nurse had advised her in a telephone conversation that MEH was not compliant with his treatment and his thought disorder was stopping him from taking advice and assistance from services. AB had advised her that his debts and a child maintenance dispute for his alleged son seemed to form part of the reason that MEH remained unwell as they had not yet been dealt with. AB did not believe that MEH was capable of managing his own finances.
JK, of the OPA, was satisfied that MEH did not have the capacity to manage his own finances. She advocated that a plenary administration order be made for the period of one year.
Findings
The Board places a high weight on evidence from Dr Addis, as presented by JK. His evidence is supported by that of the community mental health nurse AB, again as presented by JK. Earlier evidence, from Dr SY and applicant SN is consistent with this current evidence. MEH's unwillingness to receive a Disability Support Pension, as reported by JK and TT from the Public Trustee, or to co-operate with health professionals, is contrary to his best interests. MEH has not co-operated with JK, his advocate from the OPA. The body of evidence confirms that MEH lacks insight and is not able to manage his finances including the repayment of his large debts. Upon this evidence the Board is satisfied that s 64(1)(a) and (b) are met and that MEH is a person for whom an administration order could be made.
Need
The Board can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Board be met by other means less restrictive of the person's freedom of decision and action.
Evidence
The evidence as to the question of need is as follows:
The applicant said that MEH had accumulated a high level of debt and was unable to service it. This was so despite MEH having tried to use the services of a financial planner and an accountant. AB, as represented by JK has said that the debt and a dispute over outstanding child maintenance for MEH's alleged son are factors in him remaining unwell. The Public Trustee, as administrator under s 65 has obtained information that confirms MEH's debts, his inability to pay them and his lack of insight and co-operation.
Findings
MEH is at risk of the effects of a further decline in his mental health due to the stresses of a high financial debt and outstanding child maintenance claim on his estate. Without an administrator he faces action against him by creditors whom he is unable to satisfy because of his incapacity in a situation of low income which covers his day to day expenses only. MEH disputes paternity over an alleged son and disputes the associated outstanding child maintenance claim.
Conclusion
It is in MEH's best interests that a third party be appointed administrator to investigate and manage his otherwise intractable situation. Further decline in his mental health, aggravated by his financial troubles, places him at risk. It is conceivable that without an administrator he is at risk of losing his accommodation with all the undesirable consequences that could stem from that. Given MEH's past history of an extended period of wellness it is hoped that a one year administration order may reduce or remove those circumstances that stand in the way of his recovery and that the management of his estate can be returned to him upon him regaining capacity.
Therefore the Board orders that the Public Trustee is appointed plenary administrator of his estate for the period of one year, to be reviewed by 7 October 2005.
IT IS ORDERED THAT:
1.The order be revoked and an administration order in terms of paragraphs 2 to 3 of this order be substituted for it.
2.The Board having been satisfied that the represented person:
(a)remains unable, by reason of mental disability to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate; and
(c)cannot have such need met by other means less restrictive of his freedom of decision and action,
THE PUBLIC TRUSTEE of 565 Hay Street. Perth WA BE APPOINTED PLENARY ADMINISTRATOR of the estate of the represented person with all the powers and duties conferred by the Act.
3.This order be reviewed by 7 October 2005.
I CERTIFY that this and the preceding eight pages comprise the reasons for decision of the members who heard this matter.
_____________________
Mr E Leipoldt
Member
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