MENTAL HEALTH - declaration or finding of incapacity - application for revocation of order for management of estate of plaintiff - meaning of "capable of managing his or her own affairs" - what count as "affairs" - relevance of willingness to take advice to capacity to manage own affairs - relevance of vulnerability to exploitation to capacity to manage own affairs - onus of proof - standard of proof - types of matters appropriate to take into account in deciding whether standard of proof has been met - whether any discretion exists concerning making of an order
GHI (a protected person) - Plaintiff Office of the Protective Commissioner - Defendant
FILE NUMBER(S):
SC 66/03
COUNSEL:
M Bradford - Plaintiff S Balafoutis - Defendant
SOLICITORS:
Uther Webster & Evans - Plaintiff Office of the Protective Commissioner - Defendant
LOWER COURT JURISDICTION:
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST
CAMPBELL J
27 JUNE 2005
66/03 RE: GHI (A PROTECTED PERSON)
JUDGMENT
HIS HONOUR:
Nature of the Case
1 This is an application by a protected person under section 35 Protected Estates Act 1983 (“PE Act 1983”) for an order that his estate no longer be subject to management. The Protective Commissioner opposes the making of the order.
The Applicable Law
2 An order for management is made by the Court under section 13(1) PE Act 1983. It provides:
“Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act.”
3 Section 35(1) PE Act 1983 provides:
“(1) Where, upon application to it by a protected person … the Court is satisfied that the protected person is capable of managing his or her affairs, it may:
(a) revoke any declaration made that the person is incapable of managing his or her affairs,
(b) revoke the order that the estate…
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.
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AGLC
Re GHI (a protected person) [2005] NSWSC 581
Case
[2005] NSWSC 581
Decision Date
CaseChat Overview and Summary
The case before the court involved an application by the plaintiff's mother to revoke an order that the plaintiff be subject to a management order in respect of his estate. The plaintiff was deemed to be a protected person under the Guardianship and Management of Property Act 1991. The court was tasked with determining whether the plaintiff was capable of managing his own affairs, a determination that would inform whether the management order should be revoked. The dispute centred on the interpretation of the term "affairs" within the context of the legislation, and the extent to which the plaintiff's willingness to accept advice or his vulnerability to exploitation should factor into the assessment of his capacity to manage his own affairs.
The court identified several key issues to be resolved. Firstly, the meaning of the term "affairs" as it appeared in the relevant legislation, and whether this encompassed all aspects of the plaintiff's life or was limited to financial matters. Secondly, the court needed to determine the relevance of the plaintiff's willingness to accept advice in assessing his capacity to manage his affairs. Thirdly, the court had to consider whether the plaintiff's vulnerability to exploitation should be taken into account when determining his capacity to manage his affairs. Additionally, the court had to determine the standard of proof required to revoke the management order, and what types of matters were appropriate to consider in making this decision.
The court found that the term "affairs" in the legislation was broad enough to include both financial and non-financial matters. The court emphasised that the capacity to manage one's affairs was a holistic concept, and that a person's willingness to accept advice could be relevant in determining their capacity. However, the court held that vulnerability to exploitation was not a determinative factor in assessing capacity, but rather a consideration that could inform the overall assessment. The court held that the onus of proof rested with the applicant to demonstrate that the plaintiff was capable of managing his own affairs, and that the standard of proof was the balance of probabilities. The court found that the applicant had not met this standard, and thus the management order should not be revoked.