XBL (Review Administration)

[2012] TASGAB 5

GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart

XBL review of administration order on the application of Yvonne Golder, Legal Aid

Neutral citation: XBL (Review Administration) [2012] TASGAB 5

REASONS FOR DECISION

K. Barker (Chair)

Administration – capacity - interplay between alcohol use and acquired brain injury on impulsivity and decision making

1. XBL was first placed on an emergency administration order on 10 December 2008.  A full application to the Guardianship and Administration Board (the Board) for the appointment of an administration followed, and The Public Trustee was appointed for a period of 12 months on 20 March 2009.

2. The order was reviewed on 18 March 2010, at which time the Board decided to renew the appointment of The Public Trustee for a further two years.  The Board also issued directions to the administrator to, in consultation with XBL and his case management team, gradually release increasing amounts of XBL’s money to him for his own management.  The directions included the authority for the administrator to exercise discretion to reduce XBL’s allowance if there were well-founded concerns on the part of the administrator or the case management team that the increased allowance had caused or was likely to cause harm to XBL’s safety and well-being, to a minimum of $160.00 per week.

3. The administration order was reviewed in Hobart on 16 March 2012.  The following people were in attendance:

   ·     XBL

   ·     Ms Yvonne Golder, Legal Aid

   ·     Mr Tony Were, case manager, Vietnam Veteran’s Counselling Service

   ·     Dr Jacob George, consultant psychiatrist

   ·     Mr Lee Perry, compliance officer Guardianship and Administration Board.

4. I had before me the following documentation:

   ·     Annual reports from The Public Trustee dated 1 March 2011 and 16 February 2012

   ·     Statements of accounts for the periods 1 February 2010 to 31 January 2011 and 1 February 2011 to 31 January 2012

   ·     The original application and health care professional report prepared by Dr George in February 2009

   ·     A letter dated 24 February 2012 from Dr George to The Public Trustee

5. At the hearing, Ms Golder provided a copy of a letter dated 10 March 2012 from Dr Clive Skilbeck, clinical psychologist, to Dr Karen Sargent.

6. Section 51 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint an administrator of a person’s estate if it is satisfied that the person:

   (a) is a person with a disability; and

   (b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and

   (c) is in need of an administrator of his or her estate–

7. The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995:

   A function or power conferred, or duty imposed, by this Act is to be performed so that

   (a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted and

   (b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

   (c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

8. In reviewing an administration order under section 67 of the Act the Board will turn its mind to those same considerations before deciding whether to vary or continue an order under section 68 or to allow the order to lapse. The key issues for me to consider, then, are those set out in section 51.

Is XBL a person with a disability?

1. In this case, there was no dispute with the evidence provided by Dr George that XBL has an acquired brain injury subsequent to a head injury sustained in a motor vehicle accident and long term alcohol use and I accordingly find so as fact.

Is XBL, because of that disability, unable to make reasonable judgements about his estate?

1. XBL’s case is that he is able to make his own decisions regarding his estate.

2. The health care professional report prepared by Dr George in February 2009 stated that XBL was unable, due to his head injury and compounded by his alcohol intake, to make reasonable plans and follow them through or to reliably determine cause and effect relationships; was frequently prone to impulsive acts such as binge drinking and gambling; and was not capable of the tasks associated with managing his finances such as budgeting, paying bills and understanding the consequences of not paying his bills.

3. Ms Golder summarised the neuropsychology (re-assessment) report undertaken by Clive Skilbeck on 10 March 2012, noting a number of areas in XBL’s cognitive functioning which were in the average to above average range, as well as a number of areas which were significantly impaired.  She also drew attention to an improvement in XBL’s performance on verbal fluency and visual sequencing tasks compared to Mr Skilbeck’s original testing in February 2008.  Ms Golder suggested that the important consideration is which of the areas of cognitive functioning tested by Mr Skilbeck relate to XBL’s ability to make reasonable decisions.

4. Ms Golder went on to note Mr Skilbeck’s opinion that XBL’s drinking and gambling were habits had pre-existed his head injury, and that the performance gains indicated in the March 2012 re-assessment are likely to have come about as a result of XBL’s reduced alcohol intake.  Ms Golder herself concluded that XBL’s gambling and excessive drinking are not, then, symptoms of his acquired brain injury which then casts doubt as to whether it is his disability which impacts on his decision-making capacity.  She submitted that the improvement in his cognitive functioning since ceasing alcohol corroborates the idea that it is his abuse of alcohol rather than his disability, which impacts on his ability to take care of his finances.

5. Dr George had not had access to Mr Skilbeck’s report prior to the hearing, so did not provide a comprehensive response to the detail of the assessment.  He did, however, explain that it is not uncommon for someone with an acquired brain injury to retain average or high levels of general intellectual functioning but to have, at the same time, difficulties in functioning in their personal or community life.  He said frontal lobe damage in particular will impact on planning and reasoning and impulse control.

6. Dr George gave his clear opinion that XBL continues to experience impulse control problems and to lack capacity to make reasonable judgements about his finances, in spite of a reduction in his alcohol intake.  He added that XBL had told him that when he decreases his alcohol intake he will generally increase his cannabis intake.  He stated his opinion that it was the restricted access to money for the purchase of alcohol, along with the medication (Antabuse), with had helped him to reduce his alcohol intake. 

7. Dr George pointed to an incident last year in which XBL was given about $1000 to pay for some airfares, but instead gambled it away, as an example of his poor impulse control leading to poor decision-making about money.  XBL did not dispute this incident but stated that it was a “lapse” rather than a “relapse”, or a “small mistake”.

8. In response to Ms Golder’s questioning about the link between XBL’s excessive drinking and gambling behaviour, acquired brain injury, and impulsivity effecting his financial management, Dr George stated that the usual cognitive behavioural therapies available to remediate such problem behaviours are less effective to someone with a brain injury due to poor reasoning abilities. 

9. Mr Were’s evidence was that XBL had been a long term client of the Vietnam Veteran’s Counselling Service and had, for some time until 2009, been seeing a counsellor, KU.  He said that KU had withdrawn her counselling support and transferred him to the case management program as she had concluded that XBL was unable to profit any further from counselling: he was unable to follow through plans and strategies to change his gambling and drinking behaviour.  In Mr Were’s opinion this inability to follow through plans was due to both his brain injury and his alcohol use.

10. I took into account the conclusions of Mr Skilbeck’s neuropsychology assessment report which stated his opinion that

1. In conjunction with Dr George’s evidence that XBL’s “ability to control his finances and decision making has not been altered”, I was satisfied on the basis of the overall medical evidence that XBL lacks the ability to consistently make reasonable decisions about his estate.

Does XBL need an administrator?

1. XBL’s case is that he ought to have control of his own money: he is a Vietnam veteran and no one ought to be able to take his money.  He submitted that he should have “a second chance”.

2. At the time the original order was made in March 2009 XBL was in significant debt, in spite of a reasonable income provided by his Veterans Affairs pension.  These debts were cleared soon after that order was made, when XBL declared himself bankrupt.  With The Public Trustee managing his money on his behalf, XBL has remained debt free, although in its report of February 2012 it is noted that XBL has continued to borrow money from friends and “has trouble understanding that…it is his responsibility to pay the money back”.  During the hearing Mr Heaton of The Public Trustee stated that XBL had difficulty understanding that the most recent CPI increase to his pension had not been passed on to XBL directly through an increase in his allowance, as he had wanted, as it was used to repay a debt of $1000 to a friend of XBL.

3. In its March 2011 annual report to the Board, The Public Trustee reported on the outcome of two trials undertaken with a view to increasing XBL’s independence in management of his financial affairs, subsequent to the directions issued by the Board in March 2010.  The first was providing XBL cash to pay for his taxi fares himself, rather than booking his fares to an account which would then be paid by The Public Trustee.  The trial was ceased in June 2010 as XBL accepted the additional cash but continued to book his taxi fares to the account.

4. The second trial, commenced in November 2010, involved providing XBL cash for the purchase of groceries, rather than food vouchers.  However this arrangement was soon reversed after The Public Trustee “received numerous reports that [XBL] was spending almost his entire allowance on cannabis and was eating poorly or very little”.  The report indicated that XBL did not deny that this was occurring and agreed to go back to the grocery order system.

5. As noted above, The Public Trustee advanced XBL about $1000 in order for him to pay for airfares for a planned trip to Western Australia, in November 2011.  He was to have paid for the fares just the morning after The Public Trustee transferred the money into his account, however two days later he acknowledged that he had gambled the money at the casino.  XBL did not dispute this but said it was simply a minor error.

6. I was satisfied on the basis of the two trials and the incident in which he gambled the money intended for his airfares, that XBL continues to require an administrator to keep him from accumulating debt, to ensure that his money is used for essential daily living expenses, including food, and to limit his access to money for gambling and alcohol.

XBL’s wishes, his best interests and the least restrictive alternative:

1. XBL clearly wishes to have control over his own finances, however I am not satisfied that it would be in his best interests.  Aside from ensuring that his essential living requirements are met and that his health is protected by minimising access to alcohol and cannabis, The Public Trustee making decisions on his behalf will also ensure that he has sufficient funds to attend Vietnam Veterans reunions on a regular basis, something that XBL said is very important to him is keen to continue.

2. In considering whether there may be a less restrictive alternative, I took into account Ms Golder’s suggestion that The Public Trustee look at minimising their commission by paying XBL’s allowance directly from his pension to him.  The Public Trustee undertook to look at using direct debit or Centrepay for payment of XBL’s rent.  I did not consider it necessary to make any specific direction in regard to this.

3. XBL requested that any CPI increase to his pension be passed on to him with a corresponding increase in his daily allowance.  The Public Trustee indicated that it had not done this following the last increase in order to repay a debt XBL owed to a friend, but would look to do so following the outcome of the review of the administration order.

4. I considered whether any further directions, similar to those made at the March 2010 review, ought to be made, however decided that it would not be appropriate given the limited success of the trials undertaken subsequent to those directions.   The requirement of an administrator in exercising its power as set out in section 57 of the Act to, as far as possible, encourage the represented person’s independence in managing their own estate is sufficient in the circumstances of this case.

The Board’s Decision:

The Board was satisfied that XBL

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect of his estate, and

• is in need of an administrator;

THE BOARD ORDERS

1. That The Public Trustee continue as the represented person’s administrator.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the administration order remains in effect until 15 March 2015.

K Barker
16 March 2012