The expression 'incapable of managing his or her affairs' in s 41(1) of the NSW Trustee and Guardian Act 2009 must be assessed by reference to the particular person's subjective circumstances, including support systems available to them, not by reference to an abstract or hypothetical standard. The 'general principles' in s 39 inform the s 41 incapacity determination, contrary to the tentative view expressed by White J in Re D. Practice 'tests' for assessing incapacity (including the PY v RJS formulation) are useful but subordinate to the protective purpose of the jurisdiction and the welfare principle.
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