Tribunals attempt to answer two questions :

1.  If a person has a disability, and
2.  Is unable to make their own reasoned decisions because of this disability.

The cause of the disability may be dementia, neurological, intellectual disability, mental illness or an acquired brain injury.

As you can imagine the above has lead to many an issue in the Tribunal settings and victims and families often have different views as to what reasoning is.

It means the ability to think logically and judgement being sound and not affected by other cognitive domains (that can impair decision making ) such as memory, attention and other cognitive impairments.

Guardianship Legislation is slowly being changed to reflect many of the Powers of Attorney legislation which is far more relevant. The changes being:

A person has capacity to make a decision about a matter if they are able to

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make the decision
• use or weigh that information as part of the process of making the decision and
• communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

As we have stated elsewhere, we at AASGAA disagree with the retaining of memory component as recall impairment is often quite severe and can lead to false memories and delusions which create havoc and often leads to family breakdowns.

The Higher Courts look at this also as well as

According to Banks v Goodfellow, in order to have the requisite soundness of mind the person must:

1. understand the nature and effect of a will

2. understand the nature and extent of their property

3. comprehend and appreciate the claims to which they ought to give effect

4. be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition

John Banks, the testator in Banks v Goodfellow, had mental health problems and had been confined to a lunatic asylum for some years.  After he was discharged from the asylum, he continued to suffer from some delusions; in particular, he had a strong aversion to a gentleman called Featherstone Alexander, who he believed was persecuting him.  In his will, Banks left his estate to his young niece, Margaret Goodfellow.  He had lived with his niece following the death of her mother, Banks’s sister.  Margaret sadly died two years after her uncle, at the age of 20.

Margaret died intestate, and her estate passed to her paternal half-brother, who was no relative of John Banks.  John Banks junior, the son of the testator’s half-brother, then contested the will.  He argued that the testator did not have testamentary capacity.

It was found that Banks’s will was valid.  Whilst Banks did suffer from mental illness which caused delusions of the mind, these delusions did not influence his decision regarding who should benefit from his estate.

Basically the delusion must affect the relationship leading to a change in a will.

Below is an excerpt from the Office of the Public Advocate to give YOU a guide as to what they look at. Our views at AASGAA are well known what about the Guardians. This is an idea what you have to be aware of from their perspective:

https://www.publicadvocate.vic.gov.au/assessing-whether-a-person-has-decision-making-capacity

Assessing whether a person has decision making capacity