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WA Power of Attorney - Mental Competence of Individual Under Australian Law?

Discussion in 'Wills and Estate Planning Law Forum' started by Cathy43, 13 March 2016.

  1. Cathy43

    Cathy43 Member

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    Hi,

    Recently my paternal uncle has been trying to obtain power of attorney over my father's estate. My father owns his own home. He owns a unit, and he has about $400,000 savings plus a small pension.

    As a first degree relative (I am the daughter), I believe it would not be in my dad's interest for him to give his brother power of attorney. I think my uncle is doing this for purely mercenary reasons.

    I know that a person can't give power of attorney to anyone unless that person is mentally competent. My father does not have a diagnosed mental illness, but he is an alcoholic and has been traumatised by my mother's recent suicide.

    My question: under West Australian law, is a person still considered 'competent' even if they are usually intoxicated and/or emotionally traumatised?
     
  2. Sophea

    Sophea Well-Known Member

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    Often capacity is not a static condition that is maintained for months or years at a time. Whether a person has decision-making capacity may depend on environmental factors such as the time of day, location, noise or who is present. Capacity may be affected by temporary factors such as personal stress or anxiety levels, medication, infection, drugs or alcohol.

    Cases have considered whether bouts of alcoholism would affect someone's legal capacity. In Landers v Landers a man had temporary beliefs described as absurd when affected by alcohol and the court had to decide “whether the delusion alleged to exist in the mind of the testator when drunk was also present in his mind when sober”.

    The court was satisfied on the evidence in that case that the delusion did not affect the will-maker when he made his will, and therefore he had will-making capacity at that time. In another case of Timbury v Coffee the will-maker drank himself into a state of physical exhaustion and mental disturbance, however in the intervals between bouts he behaved in a reasonable manner.

    Nevertheless, he developed an intermittent distrust of and antagonism towards his wife. Even when apparently free from alcoholism, he sometimes recounted incidents relating to her that were improbable and, in some cases, inconsistent with the proven facts. He made four wills during intervals between his bouts of alcoholism. The court found the testator in this case was not of sound mind, memory and understanding when he made his last will.

    Therefore it will often depend on the precise circumstances and behaviours of the person when they made the document in question, as well as the person's general behaviour and mental state around that time.

    Therefore it is best to have some sort of official assessment as to capacity before signing anything important so that it cannot be challenged at a later time. I would say that if you are thinking of challenging a document that you believe may come into existence at a later time, I would start gathering any evidence you can as to your father's capacity to make legal decisions including medical evidence.
     
  3. Cathy43

    Cathy43 Member

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    Thank you for that reply, it was most helpful. Just make sure I've understood, there's no definite legislation covering alcohol and mental competence, but one could oppose the POA by gathering specific evidence concerning my father's alcohol use and emotional stress so I could argue that under these circumstances, he's not competent to give his brother POA, is that right? And also, I could possibly refer to case law in the second case you mentioned above?

    One last issue, if my Uncle successfully argues that my Dad needs him to manage his estate, could I counteract this arguing that if Dad does need someone to have POA, it would be best for a first-degree relative (ie either myself or my brother) to get the POA?

    BTW, I am not personally interested in getting POA over Dad's estate. I just don't want my Uncle to get it!
     

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