Judgment ‘clarifies and protects’ rights of vulnerable adults, says advocacy group
Judge O’Connor said submissions by the man’s two adult children that the transfer was for his benefit were made without any real evidence
There was “insufficient clarity” for the court to decide the transfer was the man’s will and preference; no indication of “any real jeopardy” to his wife if she did not get a joint share at this time; and no “substantive” reasons for transfer. Noting the man’s lawyer had said, because his client could not instruct him, he had no submissions on the DMRs application, the judge considered the duty of lawyers acting for a relevant person lacking capacity.Capacity can vary and, even when instructions cannot be obtained, the lawyer should investigate the application and/or advise the court if the rights of the RP are being protected. A “minimum starting point” is to be aware of possible conflicts of interest, he said.
In his judgment this week, Judge O’Connor said “exceptional” circumstances would be required for the court to regard it as appropriate to “gift” the man’s assets rather than ensuring those are used to benefit himself and those he was obliged to provide for.
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