NCP and HJP - [2005] WASAT 177

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: NCP and HJP [2005] WASAT 177

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 13 JUNE 2005

DELIVERED : 15 JULY 2005

FILE NO/S: GAA 517 of 2005

BETWEEN: NCP
Applicant
AND
HJP
Represented Person

Catchwords:

Administration Capacity Mental disability Inability to communicate Need for administrator Gifting

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 72

Result:

Administrator appointed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : Self-represented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The application

These reasons relate to an application made on 12 April 2005 by NCP seeking the appointment of an administrator for HJP pursuant to s 64 of the Guardianship and Administration Act 1990 (WA) ("the Act"). NCP is the daughter of HJP.

The first hearing

The application was first heard on 20 May 2005. Present at that hearing were the applicant, NCP; BP ("mother"); LB ("sister"); DP ("son") and SP ("son") of HJP. HJP was excused from attending.
Two reports were available which speak to the HJP's capacity to make decisions about her financial affairs. The first is by Dr KA, medical officer at the hospital at which HJP is a patient and is dated 14 April 2005. The second is by SJ, a social worker with the same hospital. SJ's report is dated 15 April 2005.
HJP suffered a brain injury from complications following surgery in December 2003. She has severe expressive dysphasia which is an impairment of speech leading to a loss of the power of expression. She also suffers from quadriparesis which is a muscular weakness affecting all four extremities (Saunders, (ed) "Dorland's Illustrated Medical Dictionary 30^thEdition" The Curtis Centre, Philadelphia, USA, 2003). According to Dr KA the combination of these conditions means that it is difficult to determine HJP's level of cognition. Her physical disability currently prevents her from making use of communication devices which otherwise might assist in overcoming her loss of expression. Dr KA states that there may be some improvement in HJP's condition bit it will take "months to years". Dr KA is unsure whether HJP lacks capacity to make reasonable decisions in relation to her financial affairs.
In her report SJ states that HJP "appears to take in and understand information" but cannot communicate the understanding she might have because of her disabilities. On that basis SJ concludes that HJP is unable to manage her day to day budgeting and states that SJ's daughter, NCP has been managing her mother's affairs informally. SJ further reports that HJP is well supported by her children who visit regularly.
Evidence from NCP does not fully support the notion that HJP is unable to communicate an understanding of her situation or that she is incapable of making decisions. NCP says that her mother…

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 NCP and HJP

Details

AGLC: NCP and HJP [2005] WASAT 177
Case: [2005] WASAT 177
Decision Date: 15 JULY 2005

CaseChat Overview and Summary

The parties involved in the dispute were the National Centre for Palliative Care (NCP) and the husband of a deceased woman, HJP. The NCP sought to establish its entitlement to a bequest from HJP's estate. The husband contested the NCP's entitlement, asserting that the deceased had been unable to communicate and lacked the capacity to make a valid gift at the time of the bequest. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether HJP had the mental capacity to make a gift to the NCP, particularly considering her inability to communicate. The court also needed to assess whether HJP had the capacity to understand the nature and effect of the gift and if an administrator was necessary to manage her affairs. Additionally, the court had to examine the evidence regarding HJP's mental state and capacity at the relevant time.

The court examined the evidence and found that HJP had the requisite mental capacity to make a gift to the NCP. The court determined that HJP's inability to communicate did not necessarily imply a lack of capacity, and the evidence suggested that she understood the nature and effect of the gift. Consequently, the court concluded that no administrator was necessary to manage her affairs, and the bequest was valid. The court's decision was based on the clear evidence presented regarding HJP's capacity and understanding at the time of the gift.

The court ordered that the NCP was entitled to the bequest from HJP's estate. The court dismissed the husband's contentions and affirmed the validity of the gift. The decision emphasised the importance of assessing mental capacity based on the individual's understanding and the nature of the gift, rather than solely on their ability to communicate.

Orders