TRIBUNAL CAPACITY V’S TESTAMENTARY CAPACITY

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

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The Powers of Attorney Act 2014 says that a person is presumed to have decision making capacity unless there is evidence to the contrary.

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.

The Powers of Attorney Act says that someone who assesses whether a person has decision making capacity, must take reasonable steps to conduct the assessment at a time and in an environment in which the person’s decision making capacity can be assessed most accurately.

When determining whether a person has decision making capacity regard should be had to the following points.

Decision making capacity for some matters
A person may have decision making capacity for some matters and not others.

If a person does not have decision making capacity this may be temporary
If a person does not have decision making capacity for a matter, it may be temporary and not permanent.

Appearance
It should not be assumed that a person does not have decision making capacity for a matter on the basis of the person’s appearance

Unwise decisions
It should not be assumed that a person does not have decision making capacity for a matter merely because the person makes a decision that is, in the opinion of others, unwise. However, if a person has made, or proposes to make, a decision that has a high risk of being seriously injurious to the person’s health or wellbeing, this (in conjunction with other factors) may be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision.

How information is provided
A person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person’s circumstances, whether by using modified language, visual aids or other means.

Making a decision with support
A person has decision making capacity for a matter if it is possible for the person to make a decision in the matter with practicable and appropriate support. For example, using information or formats tailored to the particular needs of a person; assisting a person to communicate his or her decision; giving a person additional time and discussing the matter with the person; and using technology that alleviates the effects of a person’s disability.