Nt (the Deputy of the First Respondent) v Fs (by his litigation friend the Official Solicitor) and Others
| Jurisdiction | England & Wales |
| Judge | Judge Behrens,N,T |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 684 (COP) |
| Court | Court of Protection |
| Date | 26 March 2013 |
| Docket Number | Case No: 1190748T |
[2013] EWHC 684 (COP)
IN THE COURT OF PROTECTION
IN THE MATTER THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF FS
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens sitting as a Judge of the Court of Protection in Leeds
Case No: 1190748T
The Applicant did not appear and was not represented
David Rees (instructed by the Official Solicitor) for the First Respondent
Katherine McQuail (instructed by Irwin Mitchell) for the Second and Third Respondents
Barbara Rich (instructed by Ford & Warren) for Fourth Respondent
Stuart Roberts (instructed by Clarion) for the Fifth to Eighth Respondents
Margaret Griffin.(instructed by DWF LLP) for the Ninth Respondent
Hearing dates: 11th and 12th March 2013.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by NT ("the Deputy") for authority to execute a statutory will on behalf of FS ("F"). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a will be made. There are a large number of Respondents to the application each of whom are potential beneficiaries under such a will. There are, however significant disputes between them as to the provisions of such a will.
In addition to the statutory will I am asked to authorise the Deputy to make an immediate gift of £50,000 to F's mother, the Ninth Respondent. This part of the application is uncontroversial.
Acknowledgment
Before considering the issues in detail it is right that I should acknowledge the very considerable assistance I have received from Counsel. The position statements from all Counsel are full, clear, relevant and extremely helpful in pinpointing the real issues between the parties. The cross-examination was (with some judicial encouragement) kept to a minimum and the closing speeches concise and to the point. In those circumstances it was possible to complete the application in the two days allotted. I am extremely grateful for the assistance I received.
The law
There is very little dispute between the parties as to the relevant law.
The Will
Statute
The relevant provisions are contained in sections 1(5), 4(2), 4(6) and (7), 16 and 18(1)(i) of the Mental Capacity Act 2005. The sections are set out extensively in Re P [2010] Ch 33 and it is not necessary for me to set them out in full.
Under section 1(5) any decision made for a person, P, who lacks capacity must be made in his best interests. Section 4 expands on the concept of "best interests" referred to in section 1 (5). It provides (so far as relevant):
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(6) He 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.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(b) anyone engaged in caring for the person or interested in his welfare,
(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)."
Section 16 gives the court the power to appoint a deputy or to make decisions on behalf a person who lacks mental capacity. The powers conferred by section 16 include the execution for P of a will: section 18 (1) (i). The decision to authorise the execution of a will for P is a decision which must be made by the court itself, and cannot be entrusted to a deputy: section 20 (3) (b). The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if he had capacity to make it: Sched 2 para 2.
Authorities.
I was referred to 4 authorities in the course of submissions — the decision of Lewison J (as he then was) in Re P, the decision of Munby J (as he then was) in Re M [2011] 1 WLR 344, the decision of Morgan J in Re G(TJ) [2011] WTLR 231 and the decision of Senior Judge Lush in Re J(C) [2012] WTLR 121. I do not intend to lengthen this judgment with lengthy quotations from those authorities. The guidance from them may be summarised:
1. The 2005 Act marks a radical change in the treatment of persons lacking capacity. The overarching principle is that any decision made on behalf of P must be in P's best interests. This is not the same as inquiring what P would have decided if he or she had had capacity. It is not a test of substituted judgment but requires the Court to apply an objective test of what would be in P's best interests. [ Re P paragraphs 36 – 38]
2. The Court must follow the structured decision making process laid down by the 2005 Act. Thus the Court must consider all relevant circumstances and in particular must consider and take into account the matters set out in sections 4(6) and 4(7) which I have set out above.
3. The Court must then make a value judgment giving effect to the paramount statutory instruction that the decision must be made in P's best interests. [See Re P paragraph 39].
4. As Munby J pointed out [ Re M paragraph 32] the 2005 Act contains no hierarchy between the various factors which have to be borne in mind. The weight to be attached to different factors will inevitably differ depending on the individual circumstances of the particular case. There may however in a particular case be one or more features which, in a particular case, are of "magnetic importance" in influencing or even determining the outcome.
5. The authorities contain a discussion of the weight to be attached to P's wishes and feelings. In paragraph 40 of Re P Lewison J cited at length from the decision of Judge Marshall QC in Re S [2009] WTLR 31 In paragraph 55 of her judgment she had said that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. Her reasons, expressed in paragraph 56 were:
56. The Act does not of course say that P's wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P's best interests. However, by giving such prominence to the above matters, the Act does in my judgment recognise that having his views and wishes taken into account and respected is a very significant aspect of P's best interests. Due regard should therefore be paid when doing the weighing exercise of determining what is in P's best interests in all the circumstances of the case.
She went on in paragraph 57 to suggest that there was a presumption in favour of implementing those wishes. Lewison J did not wholly agree with this reasoning. In paragraph 41 of Re P he said:
41. I agree with the broad thrust of this, although I think that HH Judge Marshall QC may have slightly overstated the importance to be given to P's wishes. First, section 1 (6) is not a statutory direction that one "must achieve" any desired objective by the least restrictive route. Section 1 (6) only requires that before a decision is made "regard must be had" to that question. It is an important question, to be sure, but it is not determinative. The only imperative is that the decision must be made in P's best interests. Second, although P's wishes must be given weight, if, as I think, Parliament has endorsed the "balance sheet" approach, they are only one part of the balance. I agree that those wishes are to be given great weight, but I would prefer not to speak in terms of presumptions. Third, any attempt to test a decision by reference to what P would hypothetically have done or wanted runs the risk of amounting to a "substituted judgment" rather than a decision of what would be in P's best interests. But despite this risk, the Act itself requires some hypothesising. The decision maker must consider the beliefs and values that would be likely to influence P's decision if he had capacity and also the other factors that P would be likely to consider if he were able to do so. This does not, I think, necessarily require those to be given effect.
In paragraph 34 of Re M Munby J agreed with the broad thrust of Lewison J and Judge Marshall's views. He amplified his views in paragraph 35:
35 I venture, however, to add the following observations:
i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124].
ii) Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case …
6. Differing views are expressed in the authorities as to relevance to the decision maker of P "having...
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