TR
[2014] QCAT 513
•14 October 2014
| CITATION: | TR [2014] QCAT 513 |
| PARTIES: | TR |
| APPLICATION NUMBER: | GAA3528-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 August 2014 |
| HEARD AT: | Queensland |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 14 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application of TR for a declaration about the capacity of herself is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | Ability to make complex financial matters after severe acquired brain injury Guardianship and Administration Act 2000 (Qld) ss 5, 6, 7 and Schedule 4 |
APPEARANCES and REPRESENTATION (if any):
| TR | The adult Adult’s mother Adult’s father Uncle Grandmother Uncle Public Trustee of Queensland official Public Trustee of Queensland official |
REASONS FOR DECISION
Background
TR is a 23-year-old woman of Cook Island descent. She sustained a severe brain injury in a motor vehicle accident when she was nine years old. She received a financial settlement for her personal injuries have been managed by the Public Trustee of Queensland (“the Trustee”).
Ms TR has brought an application for a declaration of capacity. This is supported by Dr C who has been her General Practitioner for the last 10 years.
The Trustee has been allowing TR to manage her Disability Support Pension and any earnings that she has received from undertaking work for Domino's Pizzas. The Trustee has however continued to manage her damages settlement.
The Tribunal directed that an independent report from Dr S R a Clinical Neuropsychologist be obtained regarding TR’s capacity for complex financial matters.
Does TR have capacity to manage complex financial decisions?
The Trustee has allowed TR to manage simple financial decisions so she has been given responsibility to manage her Disability Support Pension (“DSP”). The focus of the Tribunal is whether she can manage her personal injuries payment which is a significant amount.
TR told the Tribunal that she could manage all matters for herself. This included budgeting; paying her rent; and managing her day to day finances. She talked of her work for Domino's Pizzas and the support of her doctor and her boss. She was able to look after all her personal financial matters. TR was only able after some prompting to say that she was receiving the DSP. The Tribunal asked her if she had any other assets or money and she answered ”No” indicating that she did not have any other assets. The Tribunal asked her if the Trustee were holding any money on her behalf and she again answered “No”.
The whole point of the Declaration of Capacity Application is about managing the monies held by the Trustee as TR is already managing her DSP and other earnings from working for Domino's. This made it quite clear to the Tribunal that TR didn't really understand why she was there and that her understanding of her financial matters was not very good.
Mr AT her uncle acknowledged that TR still needed help to develop an understanding of her financial position. He had been trying to assist her with learning budgeting skills. He noted that TR had received a severe head injury and that impacted on her ability to understand her limitations.
Ms CE is TR’s Trust Officer. She told the Tribunal that TR was given responsibility for managing her DSP. This meant that she would need to contact Centrelink when she was working for Domino's so that her pension could be adjusted (to take into account her earnings). This did not work out well as TR was overpaid by Centrelink because she had not advised them that she was working. Centrelink asked TR to attend to discuss repayment of overpaid monies. Ms TR apparently did not respond in a timely manner so Centrelink reduced her benefit substantially. This led to TR attending Centrelink and agreeing to a repayment plan.
The issue for the Trustee was that TR had spent all the money and could not repay the monies except by deduction from her future payments. This raised two issues for the Trustee. The first was that TR did not understand the need to report earnings. This led to her spending money that she was not entitled to spend. This highlights a lack of understanding of her financial situation. The second issue was that it was necessary for TR’s DSP to be cut back radically in order for her to attend Centrelink and put a repayment plan in place. The Trustee were sufficiently concerned that they were considering taking back responsibility for managing TR’s DSP.
Ms CE told the Tribunal that she would be concerned about TR taking on her financial settlement because she was yet to prove that she could manage her DSP.
What does the medical evidence say about TR’s capacity to manage her own affairs?
Dr C provided a Health Professional Report in which he described TR as having no medical conditions and that there were no other factors that would affect her ability to manage decisions. He stated in paragraph 5.1 of the Report that TR was fully able to understand financial matters. He repeated this at paragraph 9.1 of the Report where he said that TR was able to understand, complex financial affairs.
Dr S R met with TR and tested her intellectual abilities. On page 4 of her Report she notes:
Due to significant variability within Index scores, a summary score such as the Full Scale IQ was not an accurate representation of the intellectual abilities and could not be meaningfully interpreted. Instead, her current level of intellectual functioning is better understood at an Index level across the different domains assessed. Most scores work in the borderline to extremely low range indicating a low level of intellectual functioning.
Dr SR in her Report under the heading “Opinion” on pages 5 and 6 noted:
Results of the capacity interview showed that Ms TR was a vague historian with limited insight, as she denied any cognitive or academic difficulties both before and after the accident, despite documentary evidence to the contrary. Her responses were often vague and her understanding of her financial situation limited, as she was unable to state how much money was in Trust or what would be required to purchase a house or set up a business. Her responses were naive and immature and her general presentation suggested that she may be vulnerable to financial exploitation.
On testing, Ms TR generally performed at a very low level reflecting a significant degree of cognitive and memory compromise. These results are likely to reflect the combined influence of the severe traumatic brain injury together with her pre-existing learning difficulties. The main findings can be summarised as follows: her intellectual abilities were mostly in the borderline to extremely low range with average processing speed; her verbal abilities were significantly weaker than non-verbal abilities; she displayed a significant impairment in verbal memory; she displayed poor planning, reasoning and problem solving abilities; and her literacy and numeracy skills are very low as she performed at a Grade 5 level in reading Grade 2 in mathematics.
Based on the results of the capacity assessment, it is my opinion that Ms TR does not have decision-making capacity in relation to complex financial matters.
This decision is based on the following issues identified in the assessment: she performed at a very low level of tests of intellectual ability and this degree of cognitive compromise would affect her ability to understand complex or detailed information as would be required to manage a large sum of money and her own financial affairs; she had significant language and comprehension difficulties, which would affect her ability to understand matters and communicate her wishes to others; her verbal memory abilities were significantly compromised, which would affect her ability to recall information on which to base decisions as well as recall what decisions have been made: there was evidence of executive impairment affecting reasoning and problem solving, which would impact on her ability to make reasonable, well considered decisions and to generate alternative solutions when required; and she had a very low level of mathematical ability, affecting her ability to manage everyday mathematical activities (calculating change, balancing accounts) as well is more complex financial affairs.
Dr SR recommended that her financial affairs continue to be managed by the Trustee.
What is the Tribunal's view of the evidence?
The Tribunal prefers the report of Dr SR over the report of Dr C. Dr SR was clearly more experienced in doing capacity assessments. She was able to use her interview with TR and intellectual ability testing to assist her to decide TR‘s capacity.
Dr SR's report is supported by: the Tribunal's own observations of TR’s ability to describe her financial circumstances; the evidence of her uncle Mr AT who was trying to help her learn new skills; and the observations of her Trust Officer Ms CE about how she has been managing her DSP.
The Tribunal would like to make clear that it was very positive that Ms TR working for Domino’s Pizza showing that she was learning new skills that would help her towards independence. This is applauded and the Tribunal encourages TR to continue to take positive steps forward.
The Tribunal would like also to emphasise that the monies held by the Trustee are owned by TR. They are held on her behalf. The Trustee is required to manage TR’s money in a prudent financial manner. The Trustee is also required to respect TR’s privacy and confidentiality in relation to her financial affairs.
The Tribunal is of the view that if TR were agreeable that a meeting could take place between the Trustee; her self; and a nominated family member or members and a discussion could take place on how the funds can be used for TR’s benefit.
The Tribunal suggests before any such meeting that TR’s family inform the Trustee of any matters of cultural importance that need to be understood by the Trustee.
The Tribunal would expect the Trustee to be sensitive to any cultural issues that need to be taken into account.
The Tribunal would also expect from TR’s family that they deal with the Trustee’s officers with respect and courtesy.
The focus of the Trustee and TR’s family must be always in relation to TR’s best interests.
Decision of the Tribunal
The application of TR for a declaration about the capacity of herself is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
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