protecting estate of mental illness sufferer
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Yes, the most important thing is to move quickly if you are serious about intervening on the situation. A solicitor is the best bet, and one who can advise on estate issues, as well as guardianship and administration orders (which is a rare field of expertise).
In WA, these types of orders are made in the State Administrative Tribunal. You can find a fair bit of information on their website, as well as the website for the public advocate/trustee.
Unfortunately even at my work I've run into a fair few scenarios where people have been exploited for their property and estates, and usually the overarching theme is that something could have been done if my clients had sought advice sooner.
You have my sympathies for this. Assuming:
- The person in question doesn't believe they have a mental illness; and
- It therefore degenerates due to lack of treatment.
Then you have very few options. The Mental Health Act is in dire need of an overhaul. A Power of Attorney requires a trigger of incapacity and a mentally ill person can spend millions of dollars before anyone makes that diagnosis. But it at least defines a suitable administrator beforehand. Of course, setting up a POA requires the consent of the mentally ill person, which is the difficult part.... the patient is usually the last person to know they are ill.
Having been down this path, I can only suggest:
- Let their GP know your concerns - of course they can't tell you anything but that doesn't stop you telling them what you know. They can help put in motion the required actions to get someone "formed" if necessary.
- Talk to the Public Advocate about your concerns and see if they have any ideas that could be used in your situation.
- If they have ever ended up in a hospital for treatment following an episode, then try to find out who treated them and talk to them as per the GP above.
If you have any way to track their spending and it starts to go off the rails, then those records are useful to medical and judicial staff when the time comes to implement an admin order to take over their affairs. From my experience, the bar to get one of these is set extremely high - they basically have to demonstrate they are an imminent risk to themselves or others or there is a severe risk to reputation (a notoriously nebulous concept). To do this, something pretty bad must have already happened... or no-one will step up to take someone's liberty away. Unfortunately in this system, personal liberty seems to trump personal safety concerns by a country mile...
If it gets to this point then rattle cages, bug people, show the evidence to whoever will listen and don't back off. There are no good options by that point - only options that are least bad. Good luck!
- The person in question doesn't believe they have a mental illness; and
- It therefore degenerates due to lack of treatment.
Then you have very few options. The Mental Health Act is in dire need of an overhaul. A Power of Attorney requires a trigger of incapacity and a mentally ill person can spend millions of dollars before anyone makes that diagnosis. But it at least defines a suitable administrator beforehand. Of course, setting up a POA requires the consent of the mentally ill person, which is the difficult part.... the patient is usually the last person to know they are ill.
Having been down this path, I can only suggest:
- Let their GP know your concerns - of course they can't tell you anything but that doesn't stop you telling them what you know. They can help put in motion the required actions to get someone "formed" if necessary.
- Talk to the Public Advocate about your concerns and see if they have any ideas that could be used in your situation.
- If they have ever ended up in a hospital for treatment following an episode, then try to find out who treated them and talk to them as per the GP above.
If you have any way to track their spending and it starts to go off the rails, then those records are useful to medical and judicial staff when the time comes to implement an admin order to take over their affairs. From my experience, the bar to get one of these is set extremely high - they basically have to demonstrate they are an imminent risk to themselves or others or there is a severe risk to reputation (a notoriously nebulous concept). To do this, something pretty bad must have already happened... or no-one will step up to take someone's liberty away. Unfortunately in this system, personal liberty seems to trump personal safety concerns by a country mile...
If it gets to this point then rattle cages, bug people, show the evidence to whoever will listen and don't back off. There are no good options by that point - only options that are least bad. Good luck!
Endeavour to get them treated and well enough to resume some control of their life asap. Treatments are very effective nowadays if illness is not illicit drug or personality (behavioural) related and the person is compliant.
An Administration Order is not taken lightly - as well intentioned as a person is Guardianship Boards don't give others control of someones assets at the first sign of illness, if at all (an Administration Order gives the Public Trustee powers over the estate).
Perhaps when they are better suggest they sign a POA. Easier said that done however if the person is in denial or has no insight.
Protection from what? Spending by themselves or other family members or attorneys abusing power?
Do they have capacity now? Someone without mental capacity is legally disabled and cannot make a power of attorney.
If There is a POA already in existance rhis would only cover financial things such as signing contracts or operating bank accounts etc. Medical treatments are not covered by a POA neither are lifestyle decisions such as where they should live (in nsw at least). This would be covered by appointing an enduring guardian under the guardianship act. This could be done in advance by the person when they have capacity or a family or friend can make an application to the guardianship tribunal for an order appointing someone. This is a last resort type thing so not given lightly. Supreme court can also make orders.
AnD many power of attorney's appointment lapse if capacity has lost. An enduring poa will surive in capacity. There could also be restriction in the poa. The principal could only allow the attorney to do certain things or forbid them to do other things such as selling property etc.
All this stuff is state law so it will vary from state to state.
Do they have capacity now? Someone without mental capacity is legally disabled and cannot make a power of attorney.
If There is a POA already in existance rhis would only cover financial things such as signing contracts or operating bank accounts etc. Medical treatments are not covered by a POA neither are lifestyle decisions such as where they should live (in nsw at least). This would be covered by appointing an enduring guardian under the guardianship act. This could be done in advance by the person when they have capacity or a family or friend can make an application to the guardianship tribunal for an order appointing someone. This is a last resort type thing so not given lightly. Supreme court can also make orders.
AnD many power of attorney's appointment lapse if capacity has lost. An enduring poa will surive in capacity. There could also be restriction in the poa. The principal could only allow the attorney to do certain things or forbid them to do other things such as selling property etc.
All this stuff is state law so it will vary from state to state.
While this does happen, it isn't necessarily the case. I have seen admin orders administered by lawyers etc in the event of complex financial affairs such as running a large business or overseeing a large portfolio of properties.
It is generally up to the Court to decide in each instance in at least two states I'm aware of.
I meant to use the word generally. The first part of my sentence explains it.
I'm not aware of lawyers here doing what WA does.
I've certainly never seen it in SA with those that are mentally ill adults, and i've attended many hearings over 30 years.
Here applying for an AO goes through the GSB who schedule a hearing that adheres to a specific process and which has a very strict criteria for it to be granted, why i said the chances of it being approved on a first presentaltion of illness is almost unheard of.
These get reviewed periodically (or contested - people hate losing control of their money or estate), and if the person gets better the grounds for it ususally cease to exist and the AO is pulled.
Why I thought it best to gain the trust of the sick person when they're well and of sound mind and get them to sign a POA.
My sisters and I thought ahead when our father died and had Mum sign not only a PoA but also a Medical PoA, but this was in the UK. Since then Mum has deteriorated with Dementia and is now at 97 is in a Special Dementia Home.
It was necessary for us to sell the home to pay the bills for the Home but we had no problem with the authorities we had. We saw a Solicitor with Mum when she was capable of making decisions, so all was in process well in advance.
In Australia my brother in law was incapacitated with a mental disability. Unfortunately his parents had put him under the State at a young age but this was of no use in older age. His parents had done it thinking he would be taken care of when they died. This was not the case.
Eventually I was the only one left to look after him. He had no money and no assets, luckily I could afford to pay for his special accommodation, medical costs and eventually for his burial.
It is a minefield. Good luck
Chris
It was necessary for us to sell the home to pay the bills for the Home but we had no problem with the authorities we had. We saw a Solicitor with Mum when she was capable of making decisions, so all was in process well in advance.
In Australia my brother in law was incapacitated with a mental disability. Unfortunately his parents had put him under the State at a young age but this was of no use in older age. His parents had done it thinking he would be taken care of when they died. This was not the case.
Eventually I was the only one left to look after him. He had no money and no assets, luckily I could afford to pay for his special accommodation, medical costs and eventually for his burial.
It is a minefield. Good luck
Chris
Interesting - in WA it is SAT and in Vic it is VCAT. I have seen one instance where both family and work people (eg senior managers and directors of the business owned by the person in question) all agreed that the Public Trustee was not the way to go and made submissions to the Court that the administrator should be person X. The Court was concerned that the proposed administrator would of course be professional, of good standing in the community etc and importantly would not be open to influence by the person subject to the admin order, who was very rapidly giving away their very substantial wealth built up over many years to organisations they had just found on the internet while in their delusional state.
The Administrator had to report to the Court regularly (annually?) on the actions they took and fees charged etc.
In the other instance I was thinking of, a trusted relative was given the administration rather than the Public Trustee.
Just on Medical EPA, would they be required if you are married? Would your spouse have powers to make medical decisions for you?
Similar if both souses incapacitated. Would children then have the power?
Edit: Looks like in WA it does appear to work that way. Priority given to Legal Guardians then Medical EPA and then Spouses and then children over 18. But I might be incorrect.
Similar if both souses incapacitated. Would children then have the power?
Edit: Looks like in WA it does appear to work that way. Priority given to Legal Guardians then Medical EPA and then Spouses and then children over 18. But I might be incorrect.
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We needed it recently when my FIL had treatment.
Husband and BIL made the decisions (who had Medical PoA), not MIL who was the wife and of sound mind.
Without it an urgent Treatment Order application to the GSB would have been required for doctors to make the decision for him to be able to commence electroconvulsive therapy that he desperately required (stopped eating, then drinking, and came close to dying).
I don't think you "needed it" (not meaning to come across as insensitive, just reading the words), but because you had it, it took precedence over the MIL as spouse.
I think if you didn't have it it would have been the MIL first, then your BIL/Husband if your MIL was not of sound mind, but this would have to have gone through SAT and taken up to a month to figure out.
In would have gone to the Guardianship Board instead.
The doctors made it clear that thay needed to sight the paperwork otherwise they would need to apply for a Treatment Order.
To avoid dispute and doubt it would be a good idea to have one. Often the spouse and the mother/father may disagree regarding treatment etc.
