ER [2012] QCAT 303

CITATION: ER [2012] QCAT 303 PARTIES: ER APPLICATION NUMBER: GAA6697-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 11 October 2011 HEARD AT: Cairns DECISION OF: Mark Johnston, Member DELIVERED ON: 3 January 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Public Trustee of Queensland is appointed as ER’s Administrator for 2 years. CATCHWORDS: Acquired brain injury and Bipolar Affective Disorder impact on decision making APPEARANCES and REPRESENTATION (if any): ER the Adult DS mother of the Adult EB father of the Adult Char Howell; Jeremy Godfrey; and Tasia Hodgkinson all from the Public Trustee of Queensland. REASONS FOR DECISION Background to hearing [1] On 6 June 2006 the Guardianship and Administration Tribunal received an Application about ER which was lodged with the Tribunal by DS the mother of ER seeking the appointment of an Administrator for her daughter. The Tribunal proceeded to a hearing on 14 September 2006. At the hearing the Tribunal received evidence that ER had received a head injury after falling off a horse. The Tribunal heard that ER could not budget and was known to spend her pension impulsively on gambling. The Tribunal appointed the Public Trustee of Queensland as Administrator until further order. On 27 November 2007 the Tribunal heard an Application for Declaration of capacity. The Tribunal heard from all parties present including ER that the appointment of the Public Trustee had been very helpful. The Tribunal was -- 1 of 7 -- not satisfied that ER had capacity to manage her financial affairs and dismissed the Application. On 14 April 2011 the Tribunal heard a further Application for Declaration of capacity. The Tribunal received with that Application a Health Professional Report from the Lynn Harvey social worker attached to the Mental Health Service who stated that ER had an acquired brain injury and had been diagnosed with the mental illness Bipolar Affective Disorder. She stated in her report that ER was able to operate a bank account and pay bills but that she could not keep to her budget, making hasty decisions and had underdeveloped future planning skills. After discussions with the Applicant she agreed to withdraw the Application on the basis that the Administrator would give her a trial of managing more of her finances. The Tribunal initiated a review of the appointment for 10am on 11 October 2011 to review ER’s progress. The Tribunal also directed the Applicant to provide an updated Health Professional Report to the Tribunal to support her case. [2] On 11 October 2011 at 10am the hearing of the Administration Application took place in Cairns. Something about the adult [3] ER is a 41-year-old woman with a history of falling off a horse and suffering an acquired head injury in 1987 at the age of 17. She was diagnosed with Bipolar Affective Disorder in 1990. She has the responsibility of looking after her two children. Does the adult lack capacity? Response to money management trial [4] The Administrator had attempted early in 2011 to give ER more responsibility. This is commented on in the Tribunal Briefing Report of 2 March 2011. The Report notes that ER requested extra funds outside of the budgeted allowance; and that a review of her budget had shown that she had not allowed sufficient funds to cover the telephone and electricity costs and the trial was suspended. [5] The Administrator again attempted after the Tribunal hearing of 14 April 2011 to give ER more responsibility. This is commented on in the Tribunal Briefing Report of 7 October 2011. The Public Trustee agreed to give ER another trial of paying some of her accounts for six months. In addition to the chemist account ER was given responsibility for making payments for the telephone and electricity accounts. Commencing on 14 June 2011 the amount paid into ER's nominated account was increased by the budgeted weekly amount for telephone and electricity accounts. The trial was unsuccessful with the Administrator being asked to pay an outstanding Telstra bill for $412.54 and taking responsibility for payment of the electricity account. Written reports about capacity [6] ER did not provide the Tribunal with an updated Health Professional Report about her capacity. Rather her doctor Dr Eoin McCarthy provided a bundle of documents running into hundreds of pages which represented the documents that the doctor had on file. This included: a Health Professional -- 2 of 7 -- Report from Dr McCarthy dated 15 June 2006 and another dated 24 November 2008; and a Report from Alan Kerns psychologist; and a number of reports from Donna Drew Clinical Psychologist. The Tribunal also had a Health Professional Report from Dr Edward Buenaventura dated 16 September 2010 filed in relation to an earlier hearing. [7] Dr McCarthy in the first Health Professional Report states that ER has difficulty understanding her financial affairs. He states that she is able to operate a bank account but does not have the financial planning skills to manage her finances. He also points out that she is at risk, spending her money impulsively on gambling. The basis of ER’s incapacity is stated to be: an acquired brain injury in 1986; organic psychosis; and major depression. The second Health Professional Report is written in similar terms and comes to the same conclusions regarding ER’s ability to manage her financial affairs. [8] Mr Alan Kerns psychologist in a letter dated 30 March 1995 to Dr Boyce comments as follows: ER always had difficulties with schooling, so it is likely that her borderline/mild intellectual deficiency predates the head injury. [9] DD also talks about ER’s capacity prior to the fall in her letter of 21 June 2000 to Connolly Suthers solicitors. She refers to the report of District Guidance Officer of the Department of Guidance and Special Education dated 6 April 1983. This refers to the results of intelligence tests indicating a Verbal IQ of 58, a Performance IQ of 63 and a Fall Scale IQ of 56. This level of IQ is ranked well below the first percentile of the population and is considered to be severely mentally retarded. [10] In the Health Professional Report from Dr Edward Buenaventura dated 16 September 2010 the doctor lists in clause 4.1 of the Report ER’s current medical conditions. Included in this list are: cerebral injury; ongoing psychosis; depression; and history of chronic Bipolar Affective Disorder. The only comment that the doctor makes about ER’s decision-making ability in clause 5.1 is that she is under the Public Trust at the moment. He indicates in the Summary at clause 9.1 that ER is able to make simple financial decisions. The basis of ER’s lack of decision-making capacity in clause 9.1 is an acquired brain injury; and a psychiatric disability. [11] The Tribunal received a Health Professional Report from Ms Lynn Harvey social worker for the hearing on 15 April 2011. Ms Harvey is a social worker attached to the Mental Health Unit working for Queensland Health. In the Report she states that she has known ER for 10 years and in paragraph 4.1 of her Report which asks about the adult's current medical conditions she states: Acquired brain injury 1987; Bipolar Affective Disorder 1990; and hypothyroidism. [12] In paragraph 4.2 of the Report it is noted that ER is receiving medication for her mental illness. [13] In paragraph 4.3 of the Report she states that ER was very vulnerable to outside influences and easily persuaded by others to use money that is not in her best interests. She states that ER has difficulty understanding longer- -- 3 of 7 -- term consequences of financial decisions and has unrealistic expectations in relation to her finances. [14] In paragraph 5.1 of the Report the social worker talks about the extent to which ER has the ability to understand and act upon information relevant for making decisions and the extent to which the adult appreciates the consequences of the decisions. In relation to financial affairs she has stated in effect that: ER is capable of operating a bank account and paying bills; her budgeting skills are fair however she has difficulty keeping to a budget; she makes hasty decisions; and has underdeveloped future planning skills. She also makes the point that ER is easily influenced by the people around her. In this regard her parents are a positive influence; and her friends and acquaintances are negative influences. She makes the point that ER has a tendency to make rash decisions and then change her mind. [15] In the summary at paragraph 9 of the Report the social worker states that ER is unable to make complex decisions about financial affairs. The basis for the incapacity is stated to be a brain injury; cognitive deficits; and a mood disorder. She states that ER has difficulty retaining information and learning new skills. [16] The Applicant provided a letter to the Tribunal from Lynn Harvey dated 3 October 2011 which confirms that ER is no longer a client of the Mental Health Service. It states that although ER has had a complex mental health history, she has been stable for many months and does not require their services. She writes that ER has always been very cooperative with the service and had shown great determination to get her life back on track. She supports ER to achieve independence in all aspects of living. Oral Evidence Char Howell – Public Trustee Officer [17] ER had been given responsibility to pay her electricity and telephone accounts. An increased amount was allocated as part of her living allowance to pay these outgoings. The Public Trustee has recently received a Telstra bill for $412.54 and there might also be an electricity account coming forward. She was concerned about payment arrangements and that an unpaid bill over $400 was an issue. When drawing the budget they did not want to leave ER without sufficient money for food and other necessities. Her view is that the payment of ER’s expenses would need to be monitored to ensure that her electricity and telephone are not cut off. An extra allowance was paid because she had moved residences. DS – Mother [18] She told the Tribunal that her daughter had moved three times and that her telephone bill had got out of hand. It had not been explained to her daughter that if she moved a number of times her costs would increase so she did not understand that this would happen. Her daughter would benefit from the Public Trustee explaining some of the consequences of moving to different accommodation. She could not understand why the Ergon bill was not paid. The Public Trustee has done their best to help her daughter. DS has been trying to support ER manage her affairs since 1987. ER has over the last few months tried really hard to solve her problems. She needs to -- 4 of 7 -- learn to make direct payments from her pension to pay bills. She has to save money to pay the bills. She has been making progress with her mental health. It is only in the last few months that ER has been able to manage the medication that she is on. With her finances she has to prove that she is capable of managing the affairs. EB – Father [19] He was aware that his daughter had not been able to manage the trial of more responsibility. His view was that she was able to manage small amounts and needs to be supported managing her pension. With larger amounts she would benefit from an adviser. ER [20] She acknowledged that she had failed to pay the telephone and electricity charges as agreed. ER told the Tribunal that something else had come up. She told the Tribunal that she could set up direct debits. She had taken responsibility for taking her medication to maintain her mental health and was looking to take more responsibility in relation to her finances. [21] The Tribunal asked ER what she proposed to do with her money if she were given the opportunity to manage her own finances. She outlined to the Tribunal her plans which included the purchase of a motor vehicle. [22] The Public Trustee representatives raise concerns about the proposals ER had put forward as her proposal would put her budget into deficit. It appeared to be Tribunal that ER could not understand the concerns that were being raised. Discussion on the evidence [23] The Tribunal heard from the Administrator that it had on two separate occasions trialled ER having greater responsibility for paying her bills from her pension. Both these trials were unsuccessful. [24] The Tribunal notes that there is a wealth of health information. A variety of health professionals are all of the view that ER is unable to manage her finances. [25] The Tribunal was not satisfied having considered all the evidence that ER had capacity to manage her finances. [26] The Tribunal placed emphasis on the following factors: (1) all the medical evidence before the Tribunal back to 2006; (2) the results of the trials of greater financial independence; (3) the evidence of ER’s parents who both thought that she still need to be supervised until she demonstrated she was able; and (4) concerns about the plans that ER had put forward for managing her own finances if given that opportunity. The future [27] The Tribunal accepts that ER wants to take responsibility for managing her own finances. -- 5 of 7 -- [28] The Tribunal notes that after many years of involvement with the Mental Health Service she has now been able to undertake the management of her medication and the Mental Health Service have been able to close their file. This indicates that ER is able to make progress and for that she is commended. [29] The Tribunal recommends that the Administrator at an appropriate time give ER another opportunity to demonstrate her ability to manage her financial affairs. Findings of Fact [30] ER has a diagnosis of a head injury; and Bipolar Affective Disorder. [31] ER has been assessed as having an intellectual impairment. [32] The two attempts by the Public Trustee to give ER greater financial independence have failed. [33] The Public Trustee has appropriately supported ER since 2006. Decision in relation to capacity [34] The Tribunal determines for these reasons that ER does not have capacity to make decisions about the matter. Legal requirements of the appointment of decision-makers [35] Section 12 of the Guardianship and Administration Act 2000 provides that before the Tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision-making capacity the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the Tribunal determines that the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property and without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected. Does someone need to help ER to manage her finances? [36] The Tribunal has made a decision that ER is unable to manage her finances. Does this mean that she needs an administrator? The Tribunal is of the view given its reasons set out above that there is a need for an administrator. There is evidence of the adult’s financial vulnerability and of her problems in the past with gambling. The Tribunal determines that there is an unreasonable risk to the adult’s property and that without an appointment the adult’s interests will not be adequately protected. The Tribunal determines that the need for the appointment of an administrator has been established. Findings of fact [37] The adult receives a Disability Support Pension. [38] The adult has a history of being taken advantage of financially. [39] The adult has been unable to successfully undertake to trials involving greater responsibility for managing her finances. -- 6 of 7 -- Is there a need for an administrator to be appointed? [40] The Tribunal is of the view that there is a need for a decision in relation to financial matters. Appropriateness [41] The Tribunal noted that no family members or friends attended the hearing or were suggested during the hearing as appropriate to be appointed as decision-makers for ER. [42] The Tribunal is of the view that an independent administrator is well placed to liaise with all interested parties, assess the relative merits of options the decisions on financial matters and to make decisions that best meet the adult’s needs. The Public Trustee as independent decision-maker has extensive skills and experience and is considered appropriate to be appointed as administrator in this case. Findings of fact [43] ER has no family members or other persons willing and able to act as decision-makers for her. [44] The Tribunal determines that the appointment of the Public Trustee of Queensland is an appropriate appointment in the circumstances. Term of the appointments [45] The Tribunal was of the view that a period of two years would be an appropriate time to give ER another opportunity to manage more of her finances. [46] The Tribunal appoints the Public Trustee of Queensland as the Administrator for ER for a period of 2 years. -- 7 of 7 --