As a guardianship lawyer in Western Australia, I often receive questions about the concept of capacity and the process of proving that an individual lacks decision-making capacity in guardianship and administration matters.
In this blog post, I will explore the statutory presumption of capacity, and what is necessary to rebut this presumption in light of the decision in MH [2022] WASAT 74.
Statutory Presumption of Capacity
The Guardianship and Administration Act (the GA Act) establishes a fundamental principle: the statutory presumption of capacity.
This presumption serves to protect individuals who are the subject of proceedings under the GA Act from having their decision-making capacity removed and a substitute decision-maker appointed for them without clear and cogent evidence.
As stated in MH [2022] WASAT 74 at [130], the statutory presumption of capacity is the starting point in any application under the GA Act where the decision-making capacity of a person is in issue.
It is important to note that a person who is the subject of an application for guardianship or administration orders does not need to prove that they have decision-making capacity.
The Tribunal starts from the position that the person has capacity (by virtue of the statutory presumption).
Rebutting the Presumption of Capacity
In order to rebut the statutory presumption of capacity, clear and cogent evidence is required (MH [2022] WASAT 74 at [131]).
The evidence must be sufficient to satisfy the Tribunal that the person lacks the relevant decision-making capacity.
The standard of proof applied by the Tribunal is the civil standard (balance of probabilities).
However, due to the significant consequences of a finding that a person does not have decision-making capacity, clear and cogent evidence is required to establish the facts on which that conclusion depends.
In the case of MH [2022] WASAT 74, the Tribunal found at [132] that the medical evidence, together with the evidence of other witnesses, was sufficient to displace the presumption in the GA Act that Mrs MH was capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person.
Consequently, the Tribunal found that Mrs MH was incapable of looking after her own health and safety and unable to make reasonable judgments in respect of matters relating to her person (at [133]).
This finding led the Tribunal to conclude that Mrs MH was in need of oversight, care, or control in the interests of her own health and safety (at [134]).
Key take-aways
The statutory presumption of capacity is a fundamental principle under the GA Act, and serves to protect individuals from having their decision-making capacity removed without sufficient evidence.
To rebut this presumption, clear and cogent evidence must be provided to satisfy the Tribunal that the person lacks decision-making capacity.
The decision in MH [2022] WASAT 74 serves as a useful illustration of how this process works in practice. I
If you have any questions or concerns about capacity and guardianship matters, please do not hesitate to contact me.