PE
[2016] QCAT 393
•14 October 2016
| CITATION: | PE [2016] QCAT 393 |
| PARTIES: | PE |
| APPLICATION NUMBER: | GAA6137-16;GAA6138-16 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 28 July and 8 September 2016 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 14 October 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal declares that PE has capacity for all financial matters. 2. The appointment of the Public Trustee of Queensland for all financial matters is revoked. |
| CATCHWORDS: | CAPACITY OF ADULT – adult suffering from bipolar affective disorder - two-year lapses of illness affecting capacity Guardianship and Administration Act 2000 (Qld) ss 5, 6, 7,12 |
APPEARANCES:
| Dianne Wellington Kirrily Turner | Advocate Rights in Action Brother Father Mother Sister Case Manager - Mental Health Service Public Trustee of Queensland |
REASONS FOR DECISION
Background
On 1 October 2015, the Tribunal heard an application from PM seeking the appointment of PO, PM, and PIM as Administrators for PE. The evidence at that hearing was that PE had become ill with a mental illness bipolar affective disorder and had stopped working. Her parents have lent her money to pay out her mortgage and she had drawn down $130,000 from her mortgage and had spent the money. Dr Saudah Abazari a psychiatrist from the Mental Health Service who had been treating PE provided a report in which he stated that PE had poor insight into her illness and the need for treatment and was unable to make simple financial decisions.
PO states in her letter of 12 July 2016 that the application was put in to “somehow stop her out-of-control spending”.
PE objected to her family acting as her Administrator (principally because of a conflict with her sister) and supported the appointment of the Public Trustee of Queensland for appointment as an independent Administrator. PE’s advocate also supported the appointment of the Public Trustee of Queensland.
The relationship between PE and the Public Trustee of Queensland (the Trustee) has become strained. PE sought various payments from the Trustee and became frustrated with their processes and procedures. She also took objection to the Trustee charging fees given her tight financial situation. The situation came to a head when the Trustee came to the view that she had very limited assets and insufficient income to meet her mortgage, debts and living costs.
The Trustee provided the following outline of PE’s financial position - Assets and Liabilities as at 15 July 2016 are :
Assets
Mount Sheridan property $330,000
Westpac Bank Account $123.02
1997 Toyota Camry $1700.00
Public Trustee Cash Account $91.08
Clearview Life Policy $0.00 ($500,000 accidental death cover payable on death - nil surrender value)
Total Assets $331,914.08
Liabilities
Westpac Investment Property $132,781.85 Home Loan
ANZ Frequent Flyer Platinum $34,990.97 Credit Card
Debt owing to PM $400.00
Debt owing to PO and PM $270,000
Liabilities Total $385,172.82
Total Assets $331,914.08
Less Liabilities $385,172.82
Net Position -$53,258.74
The Trustee also advised that PE’s current budget has a deficit of $3137.11 per annum.
The Trustee has recommended to PE that she sell her house and pay out the debts to Westpac Banking Corporation and the ANZ Bank. This would leave her owing money to her parents who have indicated to the Tribunal that they are prepared to waive the debt to them by their daughter if the Trustee moved as Administrator.
The Trustee are of the view that PE will not be able to meet her debts as they fall due if she does not sell her house.
The Trustee is of the view that if PM and PO waive the debt that PE might be able to meet her debts from her finances. The Trustee has written to PM and PO but they have refused to respond in a meaningful way.
The Trustee is of the view that the issue will be whether PE can manage her expenses given her limited budget. The Trustee has some concerns as to whether PE can do this based on their interactions with her to date. The Trustee was concerned that the living allowance PE has set for herself in her budget is too low to meet her actual living expenses.
PE is vehemently opposed to selling her house. She has put forward a number of budgets to the Trustee to attempt to demonstrate that she has cut expenses to meet her debts as they fall due.
PE has brought an application for a Declaration of Capacity and is seeking the removal of the Trustee as her administrator.
The question for the Tribunal is whether PE has capacity to manage her own financial affairs.
PIM
PIM her sister stated that in October 2014 to May 2015, her sister was very unwell and the family reached out to the Mental Health Service for assistance. It was during this time that PO deposited Westpac Bank $150,000 to finalise the mortgage on PE’s vacant house. PE had redrawn nearly all the funds and squandered them on frivolous items, as well as to pay for unnecessary services and payments to charities that were unaffordable. The family had come to court twice and were concerned that PE had locked herself in her room and was spending had become manic. It took a full 8 to 9 months to get PE treatment. The Mental Health Service ACT team had refused to act saying that PE’s mannerisms were behavioural and that there were no mental health concerns. The family consulted with various legal people and financial advisors including Westpac Bank and were advised that the Barnard Street house should be sold to alleviate the overwhelming debt that PE has no capacity to afford.
Dr Lindsay Martin
Dr Martin a consultant psychiatrist provided a Health Professional Report dated 8 June 2016 in which she stated that she has been seeing PE on a monthly basis since 14 September 2015. PE scored 30/30 on the Mini Mental Status Examination and she was the view that PE had full executive functioning demonstrating no abnormalities. Dr Martin was of the view that PE was fully capable to manage her personal healthcare, lifestyle and accommodation decisions, and her financial affairs. In Dr Martin’s, letter of 23 September 2015 the Doctor Martin states that PE has full capacity to manage her affairs. Dr Martin’s letter of 13 May 2016 states she spent two hours testing PE’s ability and that there was no evidence of any significant cognitive impairment.
Dr Martin in her letter of 15 April 2016 states that PE is aware when she becomes unwell that she is at risk of overspending. She has developed strategies to minimise the risks.
Dr Martin told the Tribunal that PE was able to work through her financial issues in the most appropriate way. She was aware of her tight financial position and was aware of what she has and what she could spend her money on that she has in her account. There is no evidence of impulsivity that she experiences when she is manic. PE has no cognitive impairment and she is aware that when bills come in she may have to let other expenses go.
Dr Martin stated that PE had experienced eight or nine relapses but her engagement with a private psychiatrist was a significant positive step that demonstrated that PE had insight into her need for treatment. PE is able to see her on a regular basis. PE communicates well with her case manager. She calls and uses emails and attends all her appointments. She sees her case manager regularly. If she were to come unwell, it will become clear very quickly. She has cancelled her credit card so that when she is unwell she cannot access debt finance.
Dr Martin indicated that PE recognises that she is suffering from the mental illness Bipolar Affective Disorder. She has good insight into her illness and the need for treatment. If she becomes unwell, she can ring in and be taken into hospital. This is part of her relapse plan. She is well engaged with her supports, has a comfortable relationship with her psychiatrist and her case manager. She is open about her mental health and is now very capable of managing her own affairs.
Dr Martin emphasised that engaging a private psychiatrist was a really positive step. Dr Martin sees her every month whether she is well or unwell and has the ability to adjust her medication on a regular basis. Whereas she would be seen only once every three months by a psychiatrist in the public system. Dr Martin made clear that if PE became unwell that she had agreed to be admitted into hospital. Dr Martin made the point that PE is doing everything reasonable possible to optimise her own well-being.
Dr Martin also pointed out that by seeking treatment for a thyroid issue and undertaking an anger management course that PE had shown insight into concerns that had been raised by others about her behaviour. Dr Martin told the Tribunal that the least restrictive option for the Tribunal was to allow PE to manage her own financial affairs when she was well and capable. An application can be made for the appointment of an administrator if she becomes unwell and loses the capacity.
Dr Martin confirmed that there was a risk that if PE suffered a relapse and became unwell that she would act impulsively and that her judgement would be impaired. She repeated that PE was doing the best to maintain her own mental health; that she had a good relationship with the treating psychiatrist and with her case manager. She was doing everything to minimise the risks and had a plan in place to cover the situation where she became unwell and needed hospitalisation.
Dr Martin was asked about the proposal to sell PE’s house because of the significant debts that she has. Dr Martin told the Tribunal that taking away a person’s home, a person with a chronic illness is the worst thing that could happen. The fact that she has stable accommodation is a positive protective factor in maintaining her mental health. While she may not be able to pay off the mortgage, she cannot see PE falling off her disability support pension so she should be able to meet mortgage payments.
Dr Martin when asked about PE taking advantage of her elderly parents indicated that this was not relevant to maintaining an administrative order over PE and that secondly steps could be undertaken to protect her parents outside of this application. Dr Martin stated that PE talks highly of her parents and says that since she has done anger management she sees things differently. Dr Martin sees PE’s parents as being supportive of her treatment and well-being.
Dr Martin indicated that PE has a difficult relationship with her sister, which is a clash of personalities, rather than delusionary based.
The Tribunal was provided with a copy Mental Health Review Tribunal decision of 3 February 2016, which revoked the Involuntary Treatment Order.
Dr Bruce Hansen
Dr Bruce Hansen General Practitioner provided a Health Professional Report on 25 May 2016 in which he stated that he had known PE since 7 June 2012. Dr Hansen refers to the report of Dr Martin, which says that PE is able to understand, act, appreciate the consequences of personal healthcare, lifestyle and accommodation choices, and fully able to operate financial circumstances and transactions, and able to make complex decisions. Dr Hansen notes that PE has been diagnosed with Bipolar Affective Disorder illness which started in 1999 and has experienced 8 to 9 episodes so far with the last one those being in 2015. In his letter of 25 May 2016, he states that PE is able to handle her own affairs and seems to understand her finances, including budget, more capably than the Public Trustee of Queensland.
Jane Phillips
Jane Phillips has been PE’s case manager for the Mental Health Service. Ms Phillips has known PE for a period of eight years. She confirmed that PE has been diagnosed with bipolar affective disorder. She states that PE has been compliant with her medication. She is of the view that PE does not appear to have any cognitive impairment from the view of the Mental Health Service. PE is able to make personal healthcare, lifestyle accommodation, financial affairs decisions.
Ms Phillips told the Tribunal that she was representing the treating team. The view of the treating psychiatrist and the treating team is that PE has capacity to manage her own affairs. Ms Phillips stated that PE was showing good insight and was proactive in her engagement with the Mental Health Service. If PE becomes unwell, she can be put under an Involuntary Treatment Order and treated in hospital if that is needed. When she did become unwell, the treating psychiatrist supported the application to QCAT for the appointment of an administrator. She told the Tribunal that PE sees Dr Martin regularly, which is a great protective factor. PE also has a relapse prevention plan in place.
The Tribunal received a Health Professional Report from Dr Abazari who was treating psychiatrist when she relapsed 2015. The psychiatrist was of the view that PE had no insight into her health and was unable to make complex decisions in relation to her financial affairs. This seems to be supported by PE’s actions that have led to her having debt owing to her parents of $217,000. Ms Phillips confirmed that it was now the view of the treating psychiatrist that PE had capacity.
Kirrily Turner Public Trust of Queensland
Ms Turner told Tribunal that the Trustee had met with PE on a number of occasions to work on her budget. Their experience was that PE would ask for items that were not in her budget and to cut items that had been agreed upon in her budget. The Trustee came to the view that PE’s expectations were unrealistic.
Ms Turner told the Tribunal that PE receives a Disability Support Pension of $873.90, a carers allowance $247, and a mobility allowance $93, a total of $1213.90 a fortnight.
A Statement of Advice has been obtained which provided two proposals. The first dealt with the debts of PM and PO being forgiven or waived. If these debts were forgiven then the Trustee is of the view that PE might be able to manage her debts. Her income would be approximately $2000 a month less $750 per month in interest only payments to Westpac and $750 and interest payments to the ANZ which would leave her with $500 a month or $125 per week to meet all her other expenses. PE is currently receiving $130 per week with an allowance for her mobile telephone.
The issue for the Trustee is that in relation to other expenses including telephone and motor vehicle is that PE is exceeding the allowances set in the budget. An example was her electricity, which was budgeted for $100 per quarter. The last three quarters results are $195.13; $317.68 and $219.50. The Trustee has concerns that firstly PE could not live on $125 per week and secondly would be vulnerable if interest rates rise in future; or thirdly some unexpected expenses arises for example the breakdown of her motor vehicle.
The second proposal covered the situation with the debts to PM and PO were not waived. The Trustee approached the ANZ Bank and Westpac Bank to see if the banks would waive the payments due to them circumstances. The ANZ Bank has put in place a six-month interest moratorium whilst Westpac has refused to waive any payments. The problem from the Trustee’s prospective is that the banks know that PE owns property, which can be sold to meet the debts.
The Trustee in relation to their fees obtained approval for their fees to be rebated for the current year, which saved PE the sum of $8000.
What the Trustee proposes to do in this situation given PE’s financial position is to sell the property and payout the loans to Westpac and ANZ. The Trustee would place the balance of the funds from the sale of house into a growth fund. The Trustee at the same time would ask PM and PO to waive their debt. While the property is vacant, it is dead money being paid on the mortgage and other expenses. If the property is not be sold and PE does not reside in the property, it should be rented. This might affect PE’s pension and financial advice would need to be obtained.
Ms Turner told the Tribunal that PE with her current income would be able to live in her property if she does not need to make payments to her parents but that it would be very tight. This is on the basis that PE is making interest payments only on the loans. If her income changed for example if she was moved off her Disability Support Pension and did not obtain employment then she would have to deal with the property. If interest rates change this will also place pressure on PE’s financial position. It will also leave PE vulnerable to unexpected expenses.
PO
PO told the Tribunal that she and her husband were there to help PE in relation to her financial difficulties. I was “pigheaded in the past and I was not listening to PE”. We are prepared to waive the debt owed to PE in the Trustee is removed as Administrator. We would like PE to go to the bank to tell her story with a view to the banks releasing her from her obligations. She threatened to go to the media about the way in which the banks had treated her daughter. She and her husband were there to support PE.
PE
PE told Tribunal that she had “begged the Tribunal to appoint the Trustee until she could prove that she was able and capable of managing her affairs”. She is now of the view that she does not need the help of the Trustee. This is why she has filed her application for a Declaration of Capacity. The medical reports she has filed support her case.
PE indicated that she had an emotional attachment to her house and wanted to keep her house and had no intention of renting it someone else. She would prefer to live in her own house, which was built with the help of her mother and father. She told the Tribunal that she had spent $20,000 on security alarms and cameras so that she could feel more secure living there.
PE told the Tribunal that between 1990 and 2000 she worked and earned 1200 a week and was able to finance her home and lifestyle. She had an accident that affected her back and then she started having episodes, whereby she became unwell every two years. She has withdrawn all her super. In 2005, her mother started helping her paying off instalments on her home mortgage and on the 29 July 2013, her mother paid off the loan. Between 2013 and 2015, she went on a spending spree. Her only support from her siblings was her brother PB. She told the Tribunal that she had learned from her mistakes and was aware she was at risk of acting impulsively when she was unwell.
PE went through her debts and explained to the Tribunal how she proposed budgeting her earnings. She has cancelled her ANZ Visa and AMEX card. She can make interest only payments to the Westpac Banking Corporation and ANZ bank. Her needs now dominate her spending. She has learned to address her impulsive spending. Her mood is stable. She has been to Max Employment and will look for employment after the hearing. She has Certificates in finance, medicine and business accounting and is halfway through a Diploma in accounting. She can work with her spinal condition 8 to 12 hours a week and that will not affect her pension.
PE told the Tribunal that if she was given back responsibility for managing finances she would approach the banks about waving their loans. She has spoken to Daniel Towne about an Enduring Power of Attorney and Advanced Health Directive. She told the Tribunal that she had represented herself in relation to 11 assault charges; that she had ran rental properties for parents and represented them six times in court over rental disputes; and she had successfully argued for her Involuntary Treatment Order to be revoked.
Dianne Wellington - Rights in Action
Ms Wellington is PE’s advocate. She told the Tribunal that PE had put into effect a lot of changes; she has identified things that needed to be changed; she has learned a lot about her illness and the need for treatment; she has four medical practitioners supporting her; and is aware that she might need to make difficult decisions regarding her finances. Her parents are supporting her receiving the power to manage her finances.
PIM
PIM makes the point that nearly 2/3 of PE’s annual income provides nothing more than a payment for rodents and insects while the house deteriorates further. She points out that PE’s attachment to the house, which has been unoccupied for the past 12 months does not make any sense. She recommends the sale of the house and payment of the Westpac debt to reduce the debts and allow PE to raise her standard of living. [PE denies this allegation saying that she has been living in her home. She states that she has only living at her parents place to help them at this time.]
PIM stated that PE clearly struggles with her own finances and hence the need for an administrator. The Trustee has had minimal success in making a difference to PE’s outstanding financial debts, but without intervention, PE debts were out of control. At 44 years of age, with no job prospects, and being solely reliant on government disability handouts, PE cannot stand to make good her debts in the next two lifetimes.
PIM told the Tribunal that she was concerned that her parents should not have to sell their assets to support PE financially. She said that her parents were not in a position to support PE financially. She provided a 24-page submission; an 11 page; and a 6-page submission arguing that her sister did not have capacity. The crux of her argument was that her sister’s financial history demonstrated that she could not manage her finances. She is also concerned that her parents are vulnerable to being unduly influenced by PE. She also provided a 4-page submission in she criticised Joan Phillips and the Mental Health Service.
PIM also provided an 8-page submission in relation to PM’s submission.
PIM also provided a 4-page submission in relation to Dr Martin’s evidence.
PIM also provided an 11-page submission in relation to the evidence the Trustee made in the hearing.
Discussion of the evidence
The Tribunal notes the Trustee’s advices that PE will struggle to live on $125 per week. The Tribunal agrees with the Trustee that given PE’s inability to stay within her budget this raises significant concerns that PE will not be able to manage her finances. The Tribunal notes that when unwell there have been significant issues with the management of PE’s finances over a number of years. She has placed considerable pressure on her parents to assist her with her financial problems. This has led her parents to advancing considerable sums to support her financial situation. The Tribunal understands the concerns that her sister PIM has in relation to her ability to manage her finances appropriately. This view is drawn both from PE’s history and her current financial circumstances. PIM shares the view of the Trustee that PE will struggle given her financial circumstances. There is a clear risk that PE’s standard of living could be compromised if her finances are not managed appropriately.
The Tribunal does have concerns about PE managing her financial affairs given her history and concerns of the Trustee and her sister. The Tribunal is however required as Dr Martin pointed out required to look at the least restrictive options. The Tribunal is well aware that adults with mental illnesses will have periods when they are unwell. This is when an order supporting an adult is appropriate. The Tribunal is also aware that adults with mental illness will have periods when they are well and capable of managing the affairs. The purpose of an appointment is to serve the best interests of the adult, which clearly means that when they are well they should have the right to make their own decisions.
The Tribunal whilst it can take into account PE’s history and history is often a good guide as to the future must look at PE’s capacity now.
The Tribunal has considered the evidence very carefully and has come to the view that it should accept the evidence of Dr Martin that PE suffers from a medical illness Bipolar Affective Disorder. Dr Martin’s evidence was that PE’s mental state was currently stable, that her cognitive abilities are intact, and that she is able to make her own decisions. Dr Martin states that PE is doing everything possible to optimise her mental health and well-being. PE has a good relationship with Dr Martin and her mental health service case manager Jane Phillips. She has put in place a relapse prevention plan strategies for wellness.
The Tribunal notes that this evidence is supported by Dr Bruce Hansen, who has been PE’s GP, since 2012. He is of the view that PE is able to manage her own affair
The Tribunal notes that this evidence is supported by Jane Phillips and the treating team from the Mental Health Service who are of the view that PE is able to manage her own affairs.
The Tribunal notes that this evidence is supported by the revocation of the Involuntary Treatment Order, which PE was under.
The Tribunal notes that PO and PM support PE managing her own finances.
PIM and other family members are opposed to PE managing her own affairs. PIM points to the significant damage that PE actions have done to her parent’s finances and the difficulties the family had reining in PE’s actions when she was unwell.
PE acknowledged that she had acted impulsively and with poor judgement when she was unwell between 2013 and 2015.
The issue for the Tribunal is whether PE has capacity now.
The Tribunal is of the view that there is a wealth of evidence that supports this position that PE has capacity.
The Tribunal notes that there are clearly risks both in relation to PE’s current financial situation; and in relation to impulsiveness, grandiosity and poor judgement when PE is unwell. However, the evidence is that PE’s mental state is currently stable.
The Tribunal’s determination in relation to capacity
The Tribunal has set out the evidence it accepts above.
The Tribunal makes the following findings:
i)That PE has been diagnosed with a serious mental illness Bipolar Affective Disorder
ii)That PE has had 8 to 9 relapses over the last 18 years which is become unwell
iii)That in 2013 PE had a serious relapse during which time she became impulsive, grandiose and lacked judgement. PE during this time convinced her mother PO to spend $130,000 of her savings and pay out PE’s mortgage which she subsequently withdrew and spent
iv)PE’s mental state is currently stable
v)PE has engaged a private psychiatrist Dr Martin who she sees on a regular basis
vi)PE has put in place strategies to optimise the mental health and well-being
The Tribunal declares that PE has capacity to manage all financial affairs.
The appointment of the Public Trust of Queensland as administrator for PE is revoked.
PO and PM
The Tribunal notes that PIM has raised serious concerns regarding her parents’ well-being. The Tribunal notes that in the past PE has been able to influence her parents to make payments on her behalf. The Tribunal notes that PE is currently caring for her elderly parents. There is clearly a risk given the past history, the current circumstances and the fact that PE may relapse that they will be placed in a situation where PE may influence them to take steps that are not in their best interests financially. There is always a concern where a grown-up child is living with his or her parents that they will become dependent on that person and be subject to undue influence in terms of making financial and other decisions.
The Tribunal notes that the normal way in which adults in this situation are protected are as follows:
i)referring them to a legal service that can ensure that their rights are protected;
ii)referring them to an advocacy service that protects the rights of the elderly;
iii)having them execute an Enduring Power of Attorney so that other family members can play a positive role in ensuring that their rights are observed and protected in this situation; or
iv)organise a family mediation to ensure that their rights are protected; or
v)apply to the Tribunal to have a guardian or administrator appointed to protect their interests
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