The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. V who had charge of the bookkeeping came to want to register the power, but C objected. After conflicting expert reports, the Court considered that something needed to be done and appointed V deputy (on her application), rather than an independent person, using his powers under the 2005 Act.
Held: The appeal succeeded. The decision had failed to take proper account of the parents’ expressed wishes: ‘the learned judge was wrong to dismiss as non-existent the implications from the EPAs’ having been joint appointments of the two daughters and not joint and several appointments. The difference between those two regimes is clearly spelled out in the notes on the form itself, and it must be assumed was appreciated and intended by Mr and Mrs S. On that basis, it was an almost inescapable inference that they, as donors of the powers, wanted relevant decisions either to be joint, or to be made by neither appointee, and did not want their affairs to be dealt with by the sole decision of one appointee alone.’
Both experts had recommended an independent professional as deputy, and ‘the possible disadvantages of having an impersonal Deputy managing their affairs at a formal level rather than V have been sufficiently conveyed to Mr and Mrs S as to mean that even the later expressions of their preferences are not invalidated, and should not be downgraded in weight on that account.’ As occasion allowed in due course the parents should be consulted as to whether this was working.
Marshall QC described the situation under the new Act: ‘there has been a whole sea change in the attitude of the law to persons whose mental capacity is impaired’ and ‘Two major changes are therefore embodied in the statute. The first is official recognition that capacity is not a blunt ‘all or nothing’ condition, but is more complex, and is to be treated as being issue specific. A person may not have sufficient capacity to be able to make complex, refined or major decisions but may still have the capacity to make simpler or less momentous ones, or to hold genuine views as to what he wants to be the outcome of more complex decisions or situations.
The second change is the emphasis throughout the Act on the ascertainment of the actual or likely wishes, views and preferences of the person lacking full capacity, and on involving him in the decision making process. This approach underlies s.1(2) (presumption of capacity), s 1(3) (duty to help P to make his own decision if he can), 1(4) (recognition that a person’s capacity, and therefore right, to make decisions does not depend on how objectively ‘wise’ those decisions are), s1(6) (P’s rights and freedom of action should be restricted as little as practicable), and s 4(4) (duty on decision maker to involve P in decisions), and it is the only conceivable reason for imposing the duty to consider P’s wishes or likely wishes (s 4.(6)) and to take trouble to ascertain them s (4 (7)).’
Marshall QC J
[2008] EWHC B16 (COP), [2008] EWHC B16 (Fam), [2009] LS Law Medical 97, [2009] WTLR 315
Bailii, Bailii
Mental Capacity Act 2005 1
England and Wales
Citing:
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Cited – Asiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
Lists of cited by and citing cases may be incomplete.
Health, Agency
Updated: 31 October 2021; Ref: scu.431218