MRA
[2015] QCAT 45
•4 February 2015
| CITATION: | MRA [2015] QCAT 45 |
| PARTIES: | MRA |
| APPLICATION NUMBER: | GAA10114-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 30 January 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Casey |
| DELIVERED ON: | 4 February 2015 |
| ORDERS MADE: | The application for declaration of capacity for MRA is dismissed. |
| CATCHWORDS: | Capacity of adult Guardianship and Administration Act 2000 (Qld) |
APPEARANCES and REPRESENTATION (if any):
The following parties attended the hearing:
MRA (the adult) and a representative of the Public Trustee of Queensland attended in person. A security officer assigned to the Tribunal was also present for the duration of hearing.
REASONS FOR DECISION
History of the Application
MRA is a 63 year-old man who resides in a supported accommodation facility in Brisbane.
On 16 February 2007 the Guardianship and Administration Tribunal continued the appointment of the Public Trustee of Queensland as administrator for the adult for all financial matters until further order of the Tribunal.
On 4 November 2014 the Queensland Civil and Administrative Tribunal received an application from the adult seeking a declaration of capacity.
The Legislation
The issue for the Tribunal, based upon the legislation, is: Does MRA have capacity to make financial decisions?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (GAA Act).
MRA is presumed to have capacity in accordance with section 7 of the GAA Act and general principle 1 of schedule 1 under the GAA Act. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
The GAA Act defines capacity as follows:
“Capacity for a person for a matter, means the person is capable of-
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter: and
(c) communicating the decisions in some way”.
The evidence
In addition to written material contained on the Tribunal’s file, the adult and the representative of the Public Trustee of Queensland were given the opportunity to express their views. The views, where specifically relied upon by the Tribunal, are outlined below.
Does MRA have capacity to make financial decisions?
In its determination of the adult’s financial decision-making capacity the Tribunal considered the report dated 29 October 2014 by Dr Malcolm Nyst, a general practitioner, who has known the adult for five years and last reviewed the adult at the time of writing the report. Dr Nyst stated the adult’s medical history includes depression and avoidant personality disorder, however Dr Nyst did not provide information on the adult’s current medical conditions or current medication. He submitted the adult has ‘limited insight and limited ability to understand the consequences of decision making’ for financial matters. In contradictory evidence Dr Nyst considers the adult is able to make decisions freely and voluntarily, understands the criteria necessary to make or revoke an Enduring Power of Attorney, and is able to understand and make simple and complex financial decisions.
The Tribunal also considered the reports of Dr Wilkie, a psychiatrist, who, on 7 November 2001 stated the adult had a diagnosis of acute depression, was unable to manage his money and spent his pension at the casino. On 25 September 2002 Dr Wilkie submitted he had been treating the adult for 20 years and confirmed his opinion the adult was, at that time, unable to manage money and would be likely to gamble and drink the entire amount of his pension should it be made available to him. In further correspondence dated 19 April 2004 Dr Wilkie maintained he could not support an application for the adult to gain control of his finances.
Further medical evidence is provided in a report dated 19 June 2002 by Dr Jeremy Butler, a psychiatrist, who states that the adult has ‘schizoid personality disorder; lengthy alcohol abuse/dependence; compulsive gambling; evidence of impaired judgment in interpersonal interactions and in evaluating the consequences of his behaviour – possibly indicative of frontal lobe damage secondary to alcohol consumption’. He further states the adult’s ‘capacity to act on information has been impaired by failure to adequate (sic) practise and plan spending’, and that ‘budgeting is compromised by gambling/drinking problems plus likely impairment of executive planning functions’.
In his oral submissions to the Tribunal MRA appeared agitated and argumentative. He repeatedly asked attendees if they thought he was ‘a paedophile too’ and regularly interrupted when others were speaking.
MRA told the Tribunal he has ‘severe depression’ which is currently treated with the anti-depressant ‘lovan’. He rejected Dr Nyst’s historical diagnosis of avoidant personality disorder and denied any history of gambling or alcohol issues. He submitted he wanted to regain control of his finances as the administrator was holding approximately $5000 of his funds while allocating insufficient funds to meet his daily living requirements.
The adult was able to describe rudimentary details of his financial matters. He correctly stated he had neither debtors nor creditors. He stated he received income from Centrelink, having responded to prompting that the nature of his income was the Disability Support Pension (DSP). He erroneously submitted the pension was $80 per week and he was not aware he was receiving additional funds for rental assistance from Centrelink. He did not know the fortnightly cost of his accommodation, nor did he know the details of other expenditure (e.g. pharmaceuticals).
As the hearing progressed MRA stated ‘I’ve forgotten why I’m here’ and expressed reluctance to answer questions pertaining to his financial matters, stating ‘I’m not interested in that question’. In relation to budgeting, the adult stated ‘I’m sick of this concept’ and ‘it’s my money’. When asked how he would manage the invested capital should he be successful in his application, he responded ‘I don’t know. I’d just go wild. Do you have a plan?’
The representative of the Public Trustee of Queensland provided details of the adult’s financial matters. The adult receives $981 per fortnight from Centrelink, which is comprised of the Disability Support Pension of $850 and Rental Assistance of $127. Assets include an amount of $5207 held in a Public Trust Cash Account, along with a Westpac Bank account (with minimal funds) and furniture/effects. Fortnightly expenditure managed by the administrator includes the payment of board and lodgings to the supported accommodation facility ($736). Living expenses of $180 are transferred to the adult’s Westpac account in amounts of $70 and $20 on Tuesdays and Fridays respectively. The administrator attends to budgeted expenditure in relation to pharmaceuticals, clothing and gifts for Christmas and birthdays. Fees to the Public Trustee of Queensland are rebated and the adult’s annual budget surplus is calculated at $366.
The Tribunal considered the medical and oral evidence. The Tribunal finds that while Dr Malcolm Nyst may have concluded the adult has the ability to make simple and complex financial decisions, (including the ability to understand the criteria necessary to make or revoke an Enduring Power of Attorney), his statement that the adult has ‘limited insight and limited ability to understand the consequences’ of financial decisions does not, on any reasonable or objective basis, justify such a conclusion. A limited ability to understand the consequences of a decision undermines an adult’s decision-making capacity in accordance with the provisions of Schedule 4 of the GAA Act.
The Tribunal places weight on the submissions of MRA in its determination of the adult’s understanding of the nature and effect of his financial matters. MRA did not demonstrate an understanding of the nature of his income, (DSP and rental assistance), nor the amount of his fortnightly income. He did not demonstrate an understanding of the nature of his expenditure, including the fortnightly cost of his accommodation. MRA was aware, however, of the nature and extent of his assets, including his cash reserves.
MRA was unable to demonstrate knowledge or application of budgeting skills in order to manage his assets, income and expenditure. He was unable to demonstrate an ability to formulate a plan for management of his cash reserves, stating he would ‘go wild’ should he gain access to the funds.
Conclusion
On balance the Tribunal finds the evidence of Dr Nyst, that states the adult has ‘limited insight’ and ‘limited ability’ to understand the consequences of financial decisions, is consistent with the adult’s oral evidence reflecting an inability to address budget formulation and adherence. MRA was unable to demonstrate his understanding of the nature of his income, the nature of his expenditure, nor an understanding of the necessity to formulate and adhere to a budget in order for funds to be available for accommodation and other necessary expenditure. He did not demonstrate an understanding of the consequences of decisions about his financial matters, nor did he demonstrate an understanding of the consequences of a lack of decision about financial matters.
The Tribunal makes findings that MRA has a history of mental illness along with a history of issues in relation to gambling and excessive alcohol consumption. He resides in supported accommodation and receives the Disability Support Pension.
The Tribunal is satisfied that MRA cannot understand the nature and effect of decisions about his financial matters, including those in relation to making an Enduring Power of Attorney.
Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in the GAA Act, that MRA has capacity for financial matters, is rebutted.
Accordingly, the Tribunal dismisses the adult’s application for a declaration of capacity.
The consequence of the Tribunal’s decision is that the order of the Tribunal of 16 February 2007 is unchanged in relation to the appointment of the Public Trustee of Queensland as administrator for the adult for all financial matters until further order of the Tribunal.
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