NM
[2011] QCAT 651
•14 October 2011
| CITATION: | NM [2011] QCAT 651 |
| PARTIES: | NM |
| APPLICATION NUMBER: | GAA5731-11 / GAA5732-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 14 October 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | E Morriss, Member |
| DELIVERED ON: | 14 October 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for the appointment of a guardian for NM is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. 2. NJ is appointed as administrator for NM for managing all financial matters except: (a) Day to day finances. 3. NJ is appointed as administrator for NM for managing legal matters relating to NM’s financial or property matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal two months prior to the anniversary of this appointment and annually thereafter. 6. Unless the Tribunal orders otherwise, this appointment remains current for two years. 7. The administrator is to advise the Tribunal within two weeks of settlement of NM’s compensation claim. |
| CATCHWORDS: | Guardianship – capacity – capacity to provide legal instructions |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | NM, in person |
| NJ, brother | |
| NB, brother | |
| NM, sister | |
| ND, brother |
REASONS FOR DECISION
NM is a twenty nine year old man. He comes from a Vietnamese family and migrated to Australia when he was a small child. He completed Year 12 education, and subsequently completed a Bachelor of Business (Accounting), and a Bachelor of Nursing. He was working as a nurse when he was involved in a motor vehicle accident on 22 April 2009 on the way home from work. He is seeking compensation where the quantum is likely to be substantial.
On 27 April 2010 the Queensland Civil and Administration Tribunal received an application from NJ, NM’s brother, requesting that he be appointed as a guardian and administrator.
The application was heard on 14 October 2011. At the commencement of the hearing NJ indicated that the application for guardianship was submitted due to misunderstanding, and that there was no identified need for the appointment of a guardian. All parties, including Mr NM were in agreement that the application for the appointment of a guardian should be dismissed. The Tribunal hearing focussed on the issue of capacity and whether there was a need for an administrator.
DOES NM HAVE CAPACITY FOR FINANCIAL MATTERS?
The Tribunal must consider whether NM has capacity for decision-making about his matters. There is a presumption at law that all adults have the capacity to make their own decisions.
The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
The Tribunal considered a number of health professional reports about capacity.
A report from Mr Peter Stoker, Psychologist of 10 April 2010 provided a diagnosis of Post Traumatic Stress Disorder and Major Depression with Psychotic Features which would benefit from psychological and psychiatric treatment.
Dr Joseph Matthews, Psychiatrist report of 17 August 2010 also refers to a diagnosis of Depression with psychotic features and Post Traumatic Stress Disorder. NM continues to have severe psychiatric symptoms including loss of hope, low energy loss of enjoyment, difficulty with concentration and memory, with communication, anxiety, distress and fluctuating suicidal ideation. He has severe depression affecting his motivation, energy and ability to think clearly. There has been exhaustive psychiatric treatment with several episodes of hospital care, including involuntary treatment. He has had numerous medications and ECT treatment which has caused memory difficulties.
Dr Maureen Field, Neuropsychologist of 9 April 2011 completed an assessment which indicates severe impairment of cognitive functioning, in particular severe deficits in mental speed and flexibility, attention, and math computation. His current cognitive impairment is virtually certain to be a result of depression and a contribution from ECT. Symptoms of severe depression persist. In considering his capacity she indicates that “I do not consider that he is currently capable of giving instructions. There is a marked depression of his IQ and there is severe neuropsychological impairment, particularly in the areas of memory and learning, mental speed and flexibility, attention/concentration and mathematical computation. Further pessimism resulting from his depression would cloud his judgement.” Dr Field does not believe he is capable of managing a compensation payment. His psychiatric condition is unlikely to be stable.
Dr Murray Walters, Psychiatrist report of 20 May 2011 refers to a diagnosis of Major Depressive Disorder and Post Traumatic Stress Disorder. NM is unable to return to work and his illness has proved treatment refractory and is chronic. Dr Walters says that NM has the mental capacity to make decisions about his injury compensation claim. He has short term and long term memory problems as the result of ECT and his psychiatric illnesses are likely to be responsible for his cognitive symptomatology.
Dr Walters also provided a Health Professional Report dated 16 June 2011. This confirms the above diagnoses. NM is not compliant with medication and is heavily reliant on family support. However NM is not impaired in his capacity to make personal or financial decisions.
The Tribunal spoke with NM’s family members. They raised a number of concerns about his decision making. They report continuing difficulties associated with his mental health diagnoses and the treatment, particularly ECT which they believe is associated with considerable memory impairments. Specific examples of difficulties were discussed at length, including:
(a)In regard to legal matters family have had to initiate and provide support and assistance with his compensation claim to progress the paperwork and steps necessary to move his case forward. NJ has provided instructions to Carter Capner lawyers, which they have found helpful.
(b)Another legal matter arose early in 2011 when his wife obtained a Protection Order. Despite NM understanding this and family explaining the terms, he breached this order by contacting her. He required legal representation and family assistance to resolve this matter without a conviction, but at substantial financial cost. He did not appear to have considered the consequences of his actions.
(c)He has required assistance in negotiation of a property settlement with his ex-wife and is in a more favourable situation as the result of family intervention.
(d)In regard to finances in 2010 he received a sizeable compensation payment of more than $75,000. This was spent in a short period of time on various items including expensive furniture and landscaping. None of these funds remain and he has had to rely on family loans to pay day to day living expenses, legal fees associated with his compensation claim and the breach of the Protection Order.
(e)Although he was not employed he had not applied for Centrelink benefits until recently and was therefore without any income. Although NM argued that culturally he was not comfortable with applying for Centrelink benefits, he did rely on family to assist him with his living expenses.
(f)He now owes over $30,000 to family members.
(g)Despite relying on family for living expenses he is not budgeting or managing his income and is unable to live within his means.
(h)Initially NM was in agreement he required assistance with management of his legal matters and his compensation settlement but he has recently changed his mind about this.
(i)His planning and decision making regarding a future compensation settlement reflects poor decision making and plans for extravagant spending. For example he has plans to travel overseas to find a wife, and is already shopping for an engagement ring. He wishes to buy an expensive car and other items. He has changing plans for business investments but has no capacity to manage his funds, no experience in investments, does not have any business planning skills or experiences and changes his mind frequently. He has a limited appreciation of the consequences and the need to plan for his future needs.
(j)They are concerned about his willingness to accept and follow advice.
(k)They are concerned regarding his vulnerability, particularly in the context of his marriage breakdown.
(l)He has limited ability to think ahead about the management of his funds should he be unable to return to employment and the likely consequences of choices or options. He thinks only of the moment, not the future.
(m)He has significant memory difficulties resulting from his treatment and he does not have the ability to make complex decisions. His mood disorder “clouds his judgement”.
Family also indicated that NM is an intelligent, reliable, and honest person, who prior to his motor vehicle made good decisions and was very responsible. He has a large extended family and good support available to him but they believe it is in his interests to have an administrator formally appointed to assist him with complex financial and legal matters.
The Tribunal spoke with NM. He indicated that he is currently living at home with his mother and has good support from his siblings. He separated from his wife earlier this year. Although he has relied on family members to assist him with financial and legal matters, he believes that he has capacity to make all of his own decisions. He is aware of concerns about his decision making, but he will seek assistance and advice. He believes his family see him as a lavish spender, but this is due to their very frugal family values. He indicated in response to some of the concerns that:
(a)He has Post Traumatic Stress Disorder and Depression and does not have “100% mental capacity” but can make proper judgements. He does have ongoing problems with thinking and memory but not to the extent that he cannot make decisions. His difficulties have affected his judgement at times, but he has made significant improvements.
(b)His family have assisted him in resolving the legal matters association with the breach of the Protection Order and have assisted with the compensation claim, by assisting with instructions and the completion of paperwork.
(c)His family have assisted with negotiation of a property settlement and consent orders have now been signed.
(d)He had submitted an application to Centrelink for benefits but only in recent months.
(e)He indicates that his Workcover payment has been spent.
(f)Family have provided him with financial assistance for day to day living expenses.
(g)He has attempted to return to work as a Nurse, but due to ongoing mental health symptoms has been unable to maintain his employment. He was not aware of any obligations in regard to notification of his professional body about his mental health diagnosis, treatment, and ongoing cognitive symptoms. He did not appear to have considered the impact of his symptoms on his capacity for work as a nurse.
In making a determination about capacity the Tribunal must carefully consider the medical information, and the collateral information provided by NM and his family. The report by Dr Field, Neuropsychologist specifically addresses the issue of capacity and indicates that NM does not have capacity to give legal instructions or to manage a compensation settlement. The reports of Mr Stoker, Dr Walters and Dr Matthews all raise concerns in regard to his diagnoses, non-compliance with treatment, severe psychiatric symptoms and ongoing cognitive impairments. His illness is said to be chronic without reliable improvement despite medical treatment. His prognosis for recovery, according to his treating Psychiatrist Dr Walters is said to be “poor”. Dr Walters in a subsequent report, despite noting that NM is heavily reliant on family support expressed a view that he is not impaired in regard to financial matters and can make simple and complex decisions. He does state that NM’s brother is acting for him in regard to compensation matters. Dr Walters’ opinion that NM has capacity to make decisions about complex financial matters is in contradiction to the other views regarding his impairments and ongoing need for treatment. There are also numerous examples of poor decision making in regard to complex legal and financial matters and the need for support, it may not be evident to Dr Walters.
NM argues that he has the capacity to make all of his own decisions, but the evidence simply does not support this assertion and clearly points to ongoing difficulties.
The Tribunal made findings of fact about capacity as follows:
(a)NM has diagnosed Post Traumatic Stress Disorder and Major Depressive Disorder.
(b)His mental health symptoms have been chronic and treatment refractory and impact on his understanding and capacity for complex decision making.
(c)NM has severe cognitive and memory impairments associated with his mental health conditions and treatment (including ECT) and these impairments impact on his capacity for complex decision making in regard to financial matters.
(d)He demonstrates limited insight and capacity to anticipate the consequences or effect of his decisions or actions.
The Tribunal was satisfied that NM does not have capacity for complex financial matters, including legal matters associated with his financial or property matters.
DOES NM REQUIRE AN ADMINISTRATOR? IF SO, WHO SHOULD BE APPOINTED?
NM has an injury compensation claim arising from a motor vehicle accident on 22 April 2009. His legal representatives will require instructions in regard to proceedings in compulsory settlement conferences and possible court proceedings.
It is likely that NM will receive a sizeable compensation settlement which will require careful management and investment to ensure that his financial needs are met and his interests are protected. This will be particularly important if he is unable to return to employment, and is unable to receive Centrelink benefits for an extended period of time. He has substantial debts which will require payment. In regards to his day to day finances, there is no evidence that NM will not be able to manage these matters, with appropriate support. The main concerns are about his capacity to make sound judgements about complex legal and financial matters and investments, and to make these consistently.
NJ has already assisted Mr NM with legal and financial matters. He has provided a detailed financial management plan to the Tribunal indicating how he will assist in meeting NM’s needs. NJ is a qualified pharmacist, with experience in management of a business, and has competent financial management skills. Mr NM indicated to the Tribunal that should it determine he requires an administrator, that he does trust his brother, and prefers that he be appointed as opposed to an independent administrator.
The Tribunal was satisfied that NM required an administrator to assist him with management of all financial matters except day to day matters, and that he required assistance with decision making regarding legal matters relating to his financial or property matters. Orders were made accordingly.
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