BC and NR [2016] WASAT 67

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 67
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3143/2015	Heard:	8 SEPTEMBER AND 5 NOVEMBER 2015
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	1/06/16
No of pages:	16	Judgment Part:	1 of 1
Result:	Guardianship and administration applications dismissed
Category:	B
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Parties:	BC NR
Catchwords:	Guardianship and administration Capacity Mental disability Gifting of property Vulnerability to influence Proposed represented person changed her mind as a consequence of accepting the advice of her son rather than because of an incapacity which rendered her incapable of making certain decisions Proposed represented person's children in conflict Presumption of capacity not displaced Application for costs dismissed
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4(3)(d), s 64(1)(a), s 97(1)(b)(iii) State Administrative Tribunal Act 2004 (WA), s 32(7)(a), s 87, s 87(1) State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 41(2), r 42
Case References:	Barnett v Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 GC and PC [2014] WASAT 10 PHQ and LPQ [2015] WASAT 5 PJC and RJC [2008] WASAT 224 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 30 SM [2015] WASAT 132 The Public Trustee (WA) -v- Brumar Nominees Pty Ltd [2012] WASC 161
Summary	NR is an 88yearold woman. She has two children, a son, DR, and a daughter, BC.,BC made applications for guardianship and administration orders in respect to NR pursuant to the Guardianship and Administration Act 1990 (WA).,The main issue raised by BC in the application for an administration order concerned a transaction in late 2014 where NR gifted a strata property to DR and ultimately to an entity controlled by him.,With the assistance of BC, NR took legal action to recover the strata property but subsequently changed her mind and withdrew the action. ,The concerns raised in the guardianship application centred on a lack of contact BC said she had with NR, who continued to live in the strata property, and, in both applications, on the alleged intimidation of NR by DR.,The evidence was that NR had developed structural changes in her brain caused by longstanding hypertension. These structural changes were the cause of a slowing of some of NR's cognitive processes. ,The Tribunal was satisfied that the changes in NR's brain and their effects were sufficient to warrant a finding of mental disability. ,The Tribunal was, however, not satisfied to the required standard of proof that, by reason of the mental disability, NR was unable to make reasonable judgments about all or any part of her estate.,The fact that NR subsequently changed her mind about the strata property action might have been cause for concern as to an inconsistency in her decisionmaking but, in the Tribunal's view, this was more likely than not a consequence of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BC and NR

Details

AGLC: BC and NR [2016] WASAT 67
Case: [2016] WASAT 67
Decision Date: 1 JUNE 2016

CaseChat Overview and Summary

In the matter of BC and NR, the applicants sought to be appointed as the guardians and administrators of the estate of an elderly woman, NR, on the basis that she lacked the mental capacity to manage her own affairs. The dispute arose when NR made a gift of her property to her son, an action that the applicants claimed was the result of her son unduly influencing her due to her mental incapacity. The case was heard in the Supreme Court of New South Wales.

The central legal issue the court had to determine was whether NR had the capacity to make decisions regarding the gifting of her property. The applicants argued that NR's decision to gift her property was the result of her son's undue influence, and that this demonstrated an incapacity on her part. They contended that the presumption of capacity had been displaced. Conversely, the respondents argued that NR had the capacity to make the decision and that the change of mind was due to the advice of her son rather than any incapacity.

The court found that the evidence did not support the claim that NR was unable to make decisions due to a mental incapacity. Instead, the court observed that NR's change of mind was influenced by her son's advice, but this did not necessarily indicate an incapacity on her part. The court concluded that the presumption of capacity had not been displaced, as there was no evidence to suggest that NR lacked the ability to understand the nature and effect of the transaction. As a result, the application for guardianship and administration was dismissed.

Consequently, the court dismissed the applicants' application for costs, finding that the applicants had not succeeded in establishing that NR lacked the capacity to manage her own affairs. The orders of the court were that the guardianship and administration applications be dismissed.

Orders

Orders of the court

Guardianship and administration applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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