Key issue

  • Whether FY suffered from a mental disability and whether by reason of that mental disability, is FY unable to make reasonable judgments regarding her estate.

Background

FY applied for review of a Tribunal decision which declared her unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to her estate. FY was found to have a mental disability and an administrator was appointed. FY appealed the decision as she considered herself able to manage her own finances and wished to be in control of them, given she had successfully managed her financial affairs previously.

FY immigrated to Australia from Africa, after experiencing trauma during the civil war. FY suffers from a serious ongoing medical condition that does not affect her cognitive functioning but requires ongoing care and support of service providers in allied health areas. FY has three children, has had very limited education and is largely illiterate, speaking English as her second language.

Financially, FY’s only income is from Centrelink payments. It was apparent that she currently owes a large debt to Centrelink and until recently owed a large sum to the Australian Taxation Office.

Findings

The Tribunal affirmed the single member Tribunal decision, noting six points about the definition of the ‘mental disability’ in the Guardianship and Administration Act 1990 (WA):

  • It is inclusive and so the ordinary meaning of the term remains relevant.
  • It expressly encompasses certain recognized medical conditions, each of which may result in an impairment of the mind.
  • The definition includes ‘intellectual disability’ which contemplates that a person’s ability to understand or reason is affected by an impairment or incapacity to function within a normal range.
  • The mental disability does not need to be permanent and it is irrelevant whether the individual was born with the impairment or subsequently acquired one.
  • The definition does not require any precise degree of mental disability, only that the person is unable to make reasonable judgments.
  • The definition does not require that a finding of the existence of a mental disability be based on a finding as to the existence of one or more recognized medical conditions or disorders.

Read the decision here: FY [2019] WASAT 118

For more information or discussion, please contact our Health Law team.