PJ
[2011] QCAT 467
•4 October 2011
| CITATION: | PJ [2011] QCAT 467 |
| PARTIES: | PJ |
| APPLICATION NUMBER: | GAA3974-11 / GAA7198-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 7 September 2011 |
| HEARD AT: | Maroochydore |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 4 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. PJ has capacity for financial matters. 2. The Order dated 8 September 2010 appointing The Public Trustee of Queensland as administrator for PJ is revoked, to the extent of that appointment. 3. The Order dated 8 September 2010 concerning the Enduring Power of Attorney dated 15 June 2006 is amended to indicate the Tribunal gives leave to PG to resign as attorney for PJ. 4. The application for requested review of the appointment of an administrator is dismissed. |
| CATCHWORDS: | Administrator appointed September 2010 – declaration of capacity sought – financial decision making – new evidence – capacity regained Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | PJ was supported by Catherine Hall, Advocate |
REASONS FOR DECISION
PJ is a 48 year old woman. PJ has had a long engagement with mental health services and has a diagnosis of complex personality disorder, ADHD and bi-polar disorder.
In May 2010 PG, PJ’s mother, made an application to the Tribunal for the appointment of a guardian and appointment of an administrator in regards to PJ.
On 8 September 2010 the Tribunal Ordered that The Public Trustee of Queensland be appointed as administrator for PJ for all financial matters until further Order of the Tribunal.
In those same proceedings the Tribunal Ordered that the application for an appointment of a guardian be dismissed and that PG be granted leave, as attorney under an Enduring Power of Attorney dated 15 June 2006. I note however there is an error on the face of the Order omitting the words ‘to resign’ however, it is clear from the reference to section 82(1) of the Powers of Attorney Act 1998 in that Order and the Tribunal member notes that the intention was to grant leave ‘to resign’. The Order should be duly amended.
One year later, on 23 May 2011, the Tribunal received an ‘Application for a declaration about capacity’ from PG in relation to PJ. Accompanying this was an ‘Application for administration appointment or review’ by PJ herself seeking to manage her own financial affairs. The Tribunal characterised these documents as an ‘Application for a declaration of capacity.’
On 5 September 2011 the Tribunal received an ‘Application for administration appointment or review’ from PJ’s daughter PB. Although PB supports her mother managing her own financial affairs PB wishes to be considered as an alternate administrator to the Public Trustee should the application for a declaration of capacity be dismissed. The Tribunal characterised this application as a ‘requested review of the appointment of an administrator’. PB was given an opportunity to provide further written submissions on how she is ‘more appropriate for appointment’ as administrator for her mother PJ than the Public Trustee. Those submissions were received on 21 September 2011. Although not requested, the Tribunal also received a copy of a Statement of Advice prepared for PJ by Greenlagh Pickard Integrated Solutions, dated 15 September 2011.
In considering these applications the Tribunal relies on the evidence provided to the previous Tribunal along with the new material provided including health professional reports and letters, Tribunal Briefing Report and supplementary report from the Public Trustee and oral testimony of PJ and other active and interested parties at the hearing in Maroochydore.
The main issue for the Tribunal is whether PJ has capacity for financial decision-making. Under the Guardianship and Administration Act 2000 capacity means the person being capable of understanding the nature and effect of decisions about the matter; and is able to make those decisions freely and voluntarily; and is able to communicate the decisions in some way. The ‘matter‘ in this case relates to financial decision- making.
At hearing PJ gave a reasonable but patchy overview of her finances. In essence PJ states she receives a disability support pension, owns a home with a mortgage of around $200,000.00 and is currently living on a $150.00 budget which is deposited into her account by Public Trustee every Friday.
[10] PJ described the last 12 months. PJ identified that one year ago she was being treated for a wrong diagnosis and with wrong medications. PJ described how previously she liked to shop to feel better, would buy things she didn’t need, would buy presents for others and was oblivious to her finances as her health was over taking her financial decision-making. PJ showed some insight into how her impulsiveness and consequential living above her means nearly lost her her house and put pressure on her family.
[11] At hearing PJ was initially well measured in her speech and presentation but some impulsiveness crept in by speaking over others present at the hearing despite some prompting to desist from her Advocate.
[12] PJ advised she was continuing to see her General Practitioner, Dr Buchan; Psychologist, Ms Schober; and new Psychiatrist, Dr Bird. PJ states her health practitioners support her managing her financial affairs.
[13] In contrast to the initial appointment of administrator 12 months ago PJ’s General Practitioner, Dr Buchan, by report dated 3 March 2011, opines PJ is now capable of running her own financial affairs.
[14] Dr Bird who has been providing psychiatric care to PJ since January 2011, in his letter dated 30 August 2011, describes PJ’s mental state as significantly improved and notes that her medication regime has been stabilised. Dr Bird further notes PJ’s organisational abilities have improved, that she has been able to adhere to a complicated regime of medication and is optimistic of further improvement. Although noting his short involvement with PJ he considers, based on her current functioning, she would in all likelihood be able to resume supervision of her financial affairs.
[15] PJ’s mother, father and daughter all supported her application and described how much she had improved over the last 12 months. PG and PL both noted they had received no request for funds from PJ for some time.
[16] By letter dated 7 June 2011 and in oral testimony (via telephone) on 7 September 2011 Fiona Jarrett, a social worker from the community mental health services where PJ previously received services, raised some concerns about PJ’s capacity to manage her financial affairs. In particular in the June letter Ms Jarrett noted the short period between the original appointment and current application; that only a few months earlier PJ was so distressed that she would not open her mail due to it all holding debt notices; that her incapability with regards to finances is long standing; that she did not work with the Public Trustee once they were appointed and delayed providing documents to them to manage her finances in her best interest.
[17] At hearing Ms Jarrett confirmed the service last had contact with PJ in April 2011. Ms Jarrett reiterated the short period between the initial appointment and current application and further noted that PJ’s bank and house insurer kept contacting the service because they were unable to either contact PJ or access the house for inspection in relation to an insurance claim. Ms Jarrett expressed concern that PJ did not have sufficient income to cover her mortgage repayments. Ms Jarrett did note PJ sounds very in control but suggested PJ’s release from the burden of financial decision-making could in part be contributing to her improvement and current well-being.
[18] The Public Trustee representative, regional manager Marian Hall, noted the authority’s practice not to make specific comments on a person’s capacity. The Public Trustee was however willing to make observations on the facts of the management of PJ’s financial affairs.
[19] Firstly, the Redcliffe office of the Public Trustee provided a Tribunal Briefing Report dated 15 June 2011. This Report indicated that the office had stopped verbal communication with PJ in January 2011 because of behavioural issues and that contact was conducted through either Fiona Jarrett, advocate, family or in writing. The Report also indicated PJ did not want the case manager speaking to her mother about her finances. The Report further confirmed PJ had insufficient income to support her mortgages and that notwithstanding financial advice that the best course of action would be to sell her home and invest the remaining funds PJ was not willing to do this.
[20] The Public Trustee representative at hearing provided the Tribunal with a supplementary Briefing Report dated 5 September 2011 as PJ’s file had been transferred to the Suncoast office. In the Report the Public Trustee indicated that PJ’s home had been affected by the floods and that the home and contents insurer had been unable to deal directly with PJ to sign off an Acceptance of Claim Settlement for the sum of $56,473.10. The Public Trustee noted it has recently signed off on this claim.
[21] Furthermore, the Report indicated that a scope of works for repairs to the property had been issued but the work have not progressed because PJ raised further damage that had not been assessed; that there had been numerous unsuccessful attempts to contact PJ and access the property and that the first building company cancelled their tender due to delay in commencing work. The insurer has indicated to Public Trustee that if they are unable to progress repairs they will offer a cash settlement which would amount to the lowest building repair tender received, $11,725.23. Public Trustee is of the view this is not in PJ’s best financial interest.
[22] Public Trustee also reported that very recent correspondence from PJ’s bank indicated PJ’s housing loan account had fallen behind $695.07 and the bank sought payment of arrears.
[23] The Tribunal acknowledges the concerns raised by Fiona Jarrett and accepts that there may be some merit in the view that release from the burden of financial decision-making has benefited PJ’s well-being. The Tribunal notes however that prior to September 2010, notwithstanding a long history of mental unwellness, PJ has never been subject to any administration order nor mental health order. Furthermore, PJ’s current health status continues to improve, except so far as some unwellness around medication adjustment, she continues to seek management and treatment from appropriate health practitioners and has the full support of her family. Moreover, the most recent letter from PJ’s treating psychiatrist, Dr Bird, supports the view PJ can manage her own financial affairs.
[24] The Tribunal appreciates the information provided by the Public Trustee and it provides some practical appreciation of PJ’s capacity in relation to financial decision-making. On first impressions it demonstrates the difficulties in communications between the Public Trustee and PJ; and the difficulties the insurer has had in progressing the contents and house claims. The Tribunal acknowledges these interactions raise some concerns about PJ’s financial decision-making capacity particularly on the affect delaying decisions may have on her financial affairs. However, on closer consideration the Tribunal notes a number of the communication difficulties raised by the Public Trustee, and confirmed by Fiona Jarrett, occurred prior to PJ seeking treatment from Dr Bird in January 2011. Furthermore, there appeared to be an expectation that PJ was required to sign off on the contents claim. It is unclear when the insurer became aware that the Public Trustee was appointed as administrator for all financial matters, but any delay in signing off on the contents claim cannot in all fairness be solely attributed to the actions of PJ. The issue of general contact and access may be a different matter but there may have been some confusion created when PJ changed health practitioners and health service providers, and when there was a change in Public Trustee offices managing PJ’s case.
[25] All adult persons are presumed to have capacity unless this Tribunal or the Courts with the relevant authority find otherwise. Although the presumption has been rebutted previously the Tribunal is required to reconsider the issue of capacity on a substantial application. It is not uncommon for persons with mental health issues to have fluctuating periods of capacity or incapacity. Some may become subject to corresponding appointments of administration for differing lengths of time. PJ has no such history to indicate whether that will become her pattern of decision-making authority.
[26] In this matter, notwithstanding the concerns raised, the evidence indicates PJ has improving mental well-being. More specifically, her current treating health practitioners opine she has capacity for financial decision-making. PJ’s family support the view she has capacity and support her in her determination to regain decision-making powers.
[27] In all the circumstances the Tribunal finds PJ has capacity for financial decision-making.
[28] Consequently, the Order of the Tribunal, dated 8 September 2010 appointing The Public Trustee of Queensland as administrator for PJ is revoked to the extent of that appointment; and the application for ‘requested review of the appointment of an administrator’ is dismissed.
[29] The Order dated 8 September 2010 concerning the Enduring Power of Attorney dated 15 June 2006 shall be amended to indicate the Tribunal gives leave to PG ‘to resign’ as attorney for PJ.
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