Lcn v Kf
| Jurisdiction | England & Wales |
| Judge | Beckley |
| Judgment Date | 26 November 2018 |
| Neutral Citation | [2019] EWCOP 1 |
| Court | Court of Protection |
| Docket Number | Case No: 12112224 |
| Date | 26 November 2018 |
[2019] EWCOP 1
District Judge Beckley Sitting at First Avenue House On
Case No: 12112224
Justin Holmes, Counsel for the Applicant, Eliza Eagling, Counsel for the First Respondent, Simon Heapy, Solicitor for the Second and Third Respondents and Ruth Hughes, Counsel for the Fourth Respondent.
) This is an application under section 18(1)(h) of the Mental Capacity Act 2005 for the settlement of CJF's property on trust.
) The application was made on 20 th November 2018 and the matter was heard urgently on 26 th November 2018 for reasons set out later in this judgement. An order was made authorising the execution of a settlement on the day of the hearing. I agreed to provide a written judgement given the lack of authority on the settlement of property in circumstances such as in this case.
) I would like to thank all the representatives in this case for their very able assistance. I would also thank LCN, CJF's deputy, for the very professional manner in which she has carried out her role.
Background
) The circumstances of this case are very sad. CJF was born on 2 nd October 2005; he sadly died on 4 th December 2018 when he was just 13-years old.
) Because of complications at the time of birth he suffered severe neurological disabilities. He had no independent movement, he was without speech and had severe visual impairment. CJF required support for all aspects of personal care including feeding and bathing. He needed to be lifted with a hoist and required 24-hour supervision.
) CJF's mother, KF, was 18 when CJF was born. His biological father denied paternity and played no part in CJF's life. KF's own health was permanently damaged by the birth complications. She looked after CJF for the early part of his life but he was then looked after by LR, foster parent who was unrelated to KF, and a Special Guardianship order was made.
) On 14 th August 2012, LCN, the applicant in these proceedings, was appointed as deputy for property and affairs for CJF.
) LR instructed solicitors to claim damages for CJF against the NHS trust responsible for his care at birth. The claim was settled in February 2013 with a lump sum payment of £823,943 and staggered periodic payments which in 2018 were £88,250 per annum.
) Sadly, just before settlement of the clinical negligence claim LR died. Following LR's death the Special Guardianship order was transferred to LR's daughter, EH and EH's husband, AH. EH was living with her mother when LR started to look after CJF. EH and AH also have 2 young daughters who considered CJF to be their brother.
) On 25 th September 2013, a property (referred to in this judgement as 1AY) was purchased and adapted for CJF's needs using CJF's funds. EH, AH and their 2 daughters have lived with CJF at 1AY since the purchase.
) At the time of the clinical negligence litigation, a consultant paediatric neurologist had concluded that, although it was very difficult to forecast, CJF was likely to live to around the age of 19. Unfortunately, that view turned out to be overly optimistic and on 16 th November 2018, CJF's consultant paediatric surgeon advised that CJF had entered a palliative phase in his care as no further treatment was possible and that his life expectancy was now only 4 to 6 weeks.
) By the time of the hearing it was expected that CJF would die in a matter of days. As noted earlier in this judgement, CJF died the following week.
The Application and party's responses to it
) LCN made an application on 20 th November 2018 for the settlement of CJF's assets including his property at 1AY on revocable trust for himself during his lifetime and thereafter for 1AY to pass to EH and AH and the residue of CJF's estate to pass to KF.
) LCN filed a witness statement on 21 st November 2018 proposing the settlement of CJN's estate on a disabled persons trust under section 89 of the Inheritance Act 1984 and exhibiting a proposed trust deed. LCN proposed that 1AY should pass to EH and AH effectively free of inheritance tax, i.e. that CJF's estate should pay the inheritance tax thereby reducing the residue of the estate which would pass to KF.
) The Official Solicitor was invited to act as CJF's litigation friend by order of 20 th November 2018 and had accepted the invitation by 23 rd November 2018. The Official Solicitor supported LCN's proposal that 1AY should pass to EH and AH effectively free of inheritance tax.
) KF filed an acknowledgement of service and witness statement on 22 nd November 2018. She accepted that 1AY should pass to EH and AH but opposed it being passed effectively free of inheritance tax.
) AH filed an acknowledgement of service and witness statement on 23 rd November 2018. On behalf of EH and himself he supported the proposal of LCN.
The Law
) Section 16 of the Mental Capacity Act 2005 allows the court to make decisions on P's behalf in relation to P's property and affairs where P lacks capacity in relation to those matters.
) By section 18 (1), the powers under section 16 as respects P's property and affairs extend in particular to–(h) the settlement of any of P's property, whether for P's benefit or for the benefit of others
) Any decision made must be in P's best interests (Section 1(5)).
) Section 4(2) states that 'The person making the determination must consider all the “relevant circumstances” and section 4(11) says that, “Relevant circumstances” are those (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.
) By section 4(6), the person making the decision must consider, so far as is reasonably ascertainable (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. By section 4(7) the person making the decision must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
) In Re M (Statutory Will) [2011] 1 WLR 344, Munby J made a number of points regarding best interests in relation to the making of a statutory will:
(i) The 2005 Act lays down no hierarchy as between the various factors listed in section 4 which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's ‘best interests.’
(ii) The weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case.
(iii) In any given case there may be one or more features or factors which are of ‘magnetic importance’ in influencing or even determining the outcome.
(iv) P's wishes and feelings will always be a significant factor to which the court must pay close regard.
(v) The weight to be attached to P's wishes and feelings will always be case-specific and fact-specific.
(vi) In considering the weight and importance to be attached to P's wishes and feelings the court must have regard to all the relevant circumstances. These may include:
• The degree of P's incapacity;
• The strength and consistency of the views expressed by P;
• The possible impact on P of knowing that his wishes and feelings are not being given effect to;
• The extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of implementation; and
• The extent to which P's wishes and feelings, if given effect, can properly be accommodated within the court's overall assessment of what is in his best interests.
(vii) It may be in P's best interest to avoid post-death litigation.
) Lewison J gave the following guidance in Re P [2010] Ch 33 on best interests insofar as they relate to making a Will for someone: ‘There is one other aspect of the “best interests” test that I must consider. In deciding what provision should be made in a will to be executed on P's behalf and which, ex hypothesi, will only have effect after he is dead, what are P's best interests? Mr Boyle stressed the principle of adult autonomy; and said that P's best interests would be served simply by giving effect to his wishes. That is, I think, part of the overall picture, and an important one at that. But what will live on after P's death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done “the right thing” by their will. In my judgment the decision maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death.’
) Morgan J in Re G(TJ) [2010] EWHC 3005 (COP) held that, ‘The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: section 4(6)(a) says so. The beliefs and values which would be likely to influence P's decision, if he had capacity to make the relevant decision, are a relevant factor: section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: section...
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