SK - [2015] QCAT 433 | CaseChat AU

CITATION:

SK [2015] QCAT 433

PARTIES:

APPLICATION NUMBER:

GAA8117-15

MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	10 September 2015

HEARD AT:

Bundaberg

DECISION OF:

Member Quinlivan

DELIVERED ON:

19 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:		SK has capacity for all financial matters
CATCHWORDS:	Guardianship and administration matters for adults – capacity - financial matters - compensation claim - capacity to manage lump sum settlement

APPEARANCES:

APPLICANT:

represented by Shine Lawyers

REASONS FOR DECISION

On 10 September 2015 the Tribunal considered an application about a declaration as to capacity for SK. The application was initiated by her legal representative, Ms KD who is a law clerk with Shine, Lawyers.
SK is a 21-year-old woman who lives in Bundaberg with her partner and 18-month-old son. She is supported by her parents SS and SP who were present at the hearing with her. Her partner HJ was not present due to work commitments.
On 23 July 2007 when SK was 13 years old she sustained a traumatic brain injury in an accident that occurred as she was alighting from her school bus and attempting to cross the road.
SK is currently seeking damages for personal injuries sustained by her in the accident. Specialist medical opinion has been sought by her legal representatives with respect to the nature and effect of the injuries sustained by her including her capacity to manage any compensatory settlement fund resulting from her personal injuries claim.
SK’s legal representatives have submitted that the medical evidence obtained supports a finding that SK has capacity to provide legal instructions. However, the medical evidence is divided between the specialists with respect to her capacity to manage a settlement fund.
The issue for determination in this application is whether SK has capacity for financial matters?
The Guardianship and Administration Act 2000 (Qld) 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 the following evidence about SK’s capacity.
A medical report from Dr. AL, Neurosurgeon, dated 21 July 2014. Dr. AL described SK’s injuries and said that she was admitted to the Royal Children’s Hospital in Brisbane as an inpatient from 23 July - 10 August 2007. Dr. AL considered that she has reached her maximum medical improvement. In his view she is competent to carry out all activities of daily living.
SK undertook a Montréal Cognitive Assessment (MoCA) test. Dr. Atkinson stated that she had mild difficulty with visuospatial and executive function. She also had difficulty with short-term memory. She scored 26 out of 30 placing her in the normal range.
SK also under took a K10 test and scored 30/50 suggesting moderate mental illness issues.
Dr. AL recommended that SK should be assessed by a neuropsychologist and with a psychiatrist with respect to her Adjustment Disorder with anxiety which appears to be secondary to the accident.
A medical report dated 24 July 2014, by Dr. AK, Specialist Physician, Psychiatry and Consultant Psychiatrist provided an overview of SK’s circumstances arising from her accident. In his opinion on whether SK had the capacity to provide legal instructions and to manage her financial affairs, in particular any settlement sum he stated:
“based on the available information and my clinical assessment, I believe your client has the capacity to provide legal instruction. Although she most likely fulfils the Guardianship and Administration Act criteria for fiduciary capacity, given her relatively young age and limited experience with large sums of money it would be prudent for any lump sum to be managed by either a trustee or administrator. Also, given your client’s social circumstances I am concerned about the risks of coercion or your client being taken financially advantage of by unscrupulous others”.
A neuropsychological report dated 1 August 2014 by Dr. KS, Clinical Neuropsychologist who stated that SK had a neuropsychological assessment in November 2007. On formal assessment her general intellectual functioning fell in the low average range which was considered to be consistent with her ability. Dr. KS did not specifically address the issue of SK’s capacity to give legal instructions or manage a significant settlement sum.
A further report from Dr. AL dated 21 August 2014 where he indicates that he has reviewed Dr. KS’s report and has noted her conclusion that SK had a major neurocognitive disorder due to the traumatic brain injury and an Adjustment Disorder with mixed anxiety and depression.
Dr. AL advised that in the event of SK receiving a financial award, he considered that she has capacity to manage her own financial affairs. Further she has the capacity to advise her legal representatives.
There was a further report by Dr. KS dated 13 October 2014 where she considered the conclusions of Dr. AK and Dr. AL. She advised that she agrees with both doctors that KS has the capacity to advise her legal representatives. In relation to a financial settlement Dr. KS agrees with Dr. AK that she would be concerned about the risks of manipulation and coercion by others. In her opinion SK would benefit from having any fund managed until she was more mature and she would require a neuropsychological review in order to determine her ability handle her compensation payment appropriately.
In Dr. KS’s opinion SK is able to understand the nature and effect decisions about financial matters. However, with respect to being able to freely and voluntarily make decisions about financial matters, Dr KS expressed her view that SK, by reason of her acquired brain injury, young age, and limited experience, may be vulnerable to manipulation by others. She said SK is able to communicate her decisions.
In a further report from Dr. AL dated 21 October 2014 he referred to the Report of Dr. AK dated 24 July 2014 and acknowledged the findings and recommendations. He specifically noted the conclusion of Dr. AK that SK most likely fulfils the Guardianship Administration Act criteria for fiduciary capacity but that it would be prudent for any large lump sum to be managed by either a trustee or administrator. To the contrary Dr. AL expressed the view that SK appears to be competent in activities of daily living – she drives a motor vehicle and manages her own family finances. He considered that she is competent to return to employment for which she is trained.
Further Dr. AL expressed his opinion that SK would be competent to manage her financial affairs in the event that she received a significant financial award. He accepted that she is a little more vulnerable than others who have not suffered a head injury.
An Occupational Therapy reported by Ms. LS dated 27 March 2015 does not specifically address SK’s capacity to manage her finances or advise solicitors. However, she says that SK was assessed using the Cognitive Assessment of Minnesota (MoCA) tool. SK was identified as having moderate difficulties with complex maths problems, mental flexibility and complex problem-solving. Some impairment in social awareness and judgment was also identified. Ms. LS also said that informal observations indicate that SK’s basic cognition is intact and she is able to perform everyday tasks without assistance. On occasion SK requests assistance from her mother, partner, family or friends when making decisions that involve abstract information or complex decision-making.
In correspondence dated 8 April 2015 Dr. AK referred to Ms. LS’s Report and again confirmed his opinion dated 24 July 2014 that while SK has fulfilled the Guardianship Administration criteria for fiduciary capacity, he remains concerned about her relatively young age, limited experience with large sums of money and the risk of being taken advantage of by unscrupulous others. He reiterated his recommendation that any lump sum should be managed by either a trustee or administrator.
In a further report by Dr. KS dated 23 April 2015, she acknowledged receipt Ms. LS’s Report and stated “My recommendation with respect to the issue of capacity to manage the settlement fund has not changed.”
SK’s parents SP and SS wrote to the Tribunal on 6 September 2015 to express their opinion regarding SK’s capacity to manage her own money. They point out that SK left school after completing grade 10 and although the positions that she worked were not well-paying, she managed to live within her means. They acknowledged that she writes a lot of things down so she doesn’t forget them because she knows about her disabilities and she worked out ways to assist herself to overcome this.
They claim that SK knows how to budget including keeping track of the bills of her young family. They say she pays her bills on time and often organizes to pay bills regularly rather than all at once. They point out that she has separate bank accounts that help her to put money away for major bills and that she is very organized in this area.
They say she has worked hard for everything she has and she has not been brought up expecting the finer things of life. They indicate that they have no hesitation in stating that in their opinion SK has the ability to manage her own money.
SK’s parents demonstrated at the hearing their support for their daughter and her family in an appropriate and balanced manner.
At the hearing SK gave clear evidence regarding her circumstances and her plans for the future. She said that she is engaged to HJ and that he is planning for a long engagement. They had moved to Bundaberg about 5 months ago. They are renting a nice but cheap property.
SK admitted that her memory is “shocking” and explained that she uses lists to manage her daily activities. She does a weekly budget and keeps copies of each one for comparison. She joked that each week’s budget is very similar which could be observed by checking on her refrigerator where she keeps them.
SK said that she has been living independently since she turned 18 and at various times has held up to three jobs in order to support herself.
With respect to the possibility that she may obtain a significant lump sum, SK explained that the money would be hers to be used for her and her child’s future. When questioned about possible impulse buying such as purchasing a new motor vehicle, SK expressed a very strong view that they did not need a new vehicle and if for example, HJ wanted to do such a thing she would tell him he was an “idiot”. Even if he tried to persuade her to do something like that, she said that she would think it was frivolous and stupid.
In relation to managing any amount that she might receive, SK said that she would defer to her parents even before she spoke to HJ. She also explained that in the event that it was found that she required a trustee or administrator she would prefer a private trustee to the Public Trustee.
The Tribunal is satisfied that SK is focused on her future. She emphasised that even when she was pregnant she still held down three jobs. She made it clear that she likes to pay her own way and budgets strictly for that purpose. In her words, “if it is not spending money then you don’t touch it”.
She explained that she has an account for bills and she deposits $100 per week in it to make sure there is always enough to pay for the bills. She tries to be very disciplined and determined. She indicated that her parents support her intentions.
SK claimed that she understands the comments in the medical reports but she believes that she is more careful than most people her age and more responsible than other 21-year-olds. She admitted that she found school difficult and as a result she had to manage on a low income for a long time. In broad terms her plan to manage her money is to put it in interest-bearing account, buy a house for her and her son and adopt a sensible approach to plan for her ultimate retirement. She recognised that due to her physical disabilities, she needs to have a long-term plan.

The outcome?

All of the medical experts are satisfied that SK has the capacity to instruct her legal representatives in relation to her damages claim. Dr. AL is satisfied that SK has the capacity to manage her own finances including any lump sum which she may obtain as a result of her damages claim.
Dr. AK and Dr. KS are satisfied that’s SK fulfils the criteria under the Guardianship and Administration test for fiduciary capacity. However, they both recommend that any lump sum be managed by either a trustee or an administrator.
Dr KS in particular focusses on the second element of the definition of “capacity” and says:
“With regards freely and voluntarily making decisions about the financial matter I think that by reason of her acquired brain injury, young age, and limited experience, she may be vulnerability(sic) to manipulation and coercion by others.”
Section 5 of the Guardianship and Administration Act 2000 (Qld) acknowledges that an adult’s right to make decisions is fundamental to the adult’s inherent dignity and the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extend.
Section 5(b) of the Act recognises that the right to make decisions includes the right to make decisions with which others may not agree. Further section 5(c) allows that the capacity of an adult with impaired capacity to make decisions may differ according to the nature and effect extent of the impairment, the type of decision to be made including, for example, the complexity of the decision to be made and the support available from members of the adult’s existing support network.
In this instance the Tribunal was impressed with SK’s presentation at the hearing, her determination to manage her own affairs, her careful and thoughtful insight into her circumstances appeared to be balanced and sensible.
The medical evidence is consistent in that all the experts agree that SK has capacity to provide instructions to her legal advisors and further that at a minimum she satisfies the criteria as set out in the GAAT Act with respect to her capacity for financial decision–making.
The qualification relates to the risk of her being exploited by “unscrupulous others”. However, SK is clearly supported by her parents who were present throughout the hearing. She appears to be in a supportive, caring relationship with her partner who is employed. There was no evidence that she is prone to reckless, impulsive or ill-advised decision making. To the contrary her evidence is that she is very careful and conservative in her approach to managing her finances.
The Tribunal is mindful of the comments of Young J. in the decision, Re C (TH) and the Protected Estates Act [1999] NSWSC 456 (3 May 1999) [10], [17]:
“One cannot be too paternalistic. People have the right to manage their affairs, unless they fall below the level that is prescribed by the Act.... There is no room in the legislation for benign paternalism. A person is allowed to make whatever decision she likes about her property, good or bad, with happy or disastrous effect, so long as she is capable.”
The Tribunal has no evidence as to the potential outcome of SK’s claim but it is satisfied that she has demonstrated an intention to manage any amount in an appropriate manner, with support from her family and in her best interests and those of her child.
Therefore, the Tribunal finds that SK is capable of:
(a)understanding the nature and effect of decisions about a financial matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way”.
In all the circumstances the Tribunal is not satisfied that the presumption of “capacity” for financial matters has been rebutted in relation to SK. The Tribunal declares that SK has capacity for all financial matters.