Re G (Patients)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MORGAN,Mr Justice Morgan |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] EWHC 1861 (Ch) |
| Docket Number | Case Nos: 11256201 OF 2006 AND 11256218 OF 2006 |
| Court | Chancery Division |
| Date | 31 July 2007 |
[2007] EWHC 1861 (Ch)
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Morgan
Case Nos: 11256201 OF 2006 AND 11256218 OF 2006
Mr Michael King (instructed by Harcus Sinclair) for C
Mr William Henderson (instructed by Gordon Dadds) for N
Mr David Rees (instructed by the Official Solicitor) for the Official Solicitor
Hearing dates: 3rd, 4 th and 5 th July 2007
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.
Introduction
This case is concerned with applications made to the Court of Protection pursuant to sections 95 and 96 of the Mental Health Act 1983. In accordance with Rule 37 of the Court of Protection Rules 2001, the hearing of this matter was in private. At the end of the hearing, I was invited to consider giving judgment in open court. The persons who are involved in these proceedings are the patients, represented by the Official Solicitor, and the son and daughter of the patients. The Official Solicitor and the son and daughter were represented by Counsel. There was no objection to the suggestion that judgment be given in open court, and indeed, a judgment in open court might be of interest in so far as it illustrated how the court exercised its powers under section 95 and 96 of the Mental Health Act 1983 Act (even though those sections are shortly to be replaced by new provisions in the Mental Capacity Act 2005). It is possible to anonymise this judgment and, accordingly, I give this judgment in open court.
In this judgment, the patients are referred to as Mr G and Mrs G. Their son is referred to as N and their daughter is referred to as C. The principal company in which Mr and Mrs G own shares will be referred to as GCL.
References to numbered sections are to the sections of the Mental Health Act 1983, unless otherwise stated.
Mr G was born in 1929 and is now aged 78. The medical evidence satisfies me that Mr G is incapable, by reason of mental disorder, of managing and administering his property and affairs: see section 94(2). Further, the medical evidence is such that I have reason to believe that Mr G is incapable of making a valid will for himself: see section 96(4)(b). Pursuant to orders made on the 6 th January 2005 and the 8 th March 2005, a receiver for Mr G has been appointed. Mr G's life expectancy has, in the past, been estimated at less than five years but this estimate has more recently been revised to a period in excess of five years. A typical life expectancy of a 78 year old male is between 8.5 and 10 years.
Mrs G was born in 1928 and is aged 78. On the medical evidence in her case, I am satisfied that Mrs G is incapable, by reason of mental disorder, of managing and administering her property and affairs: see section 94(2). Further, I have reason to believe that Mrs G is incapable of making a valid will for herself: see section 96(4)(b). Pursuant to orders made on the 6 th January 2005 and the 8 th March 2005, a receiver for Mrs G was appointed. Her receiver is the same person as the receiver for Mr G. Mrs G's life expectancy has been estimated at a period in excess of 5 years. A typical life expectancy for a 78 year old female would be between 10.8 and 12.1 years.
Although the receiver for Mr and Mrs G made one of the applications which is before me, it was agreed by all concerned that the receiver need not appear at the hearing. The interests of the patients are represented by the Official Solicitor who appeared by counsel, Mr Rees.
Mr and Mrs G had two children, a son (N) and a daughter (C). N was born in 1954 and is now aged 52. C was born in 1958 and is now aged 48.
The Applications
There are four matters before the court; three of these arise under sections 95 and 96 and the fourth does not rise under the Mental Health Act 1983, but it is convenient to deal with it together with the first three applications.
The first application was made by the receiver for the court to authorise a deed of gift of a substantial capital sum to C, together with an order authorising the receiver to pay sums towards the maintenance of C. The second application is by N for the court to authorise a gift of shares in GCL and associated companies to N, together with further directions relating to the involvement of the patients in GCL. The third application is made by C for the court to authorise statutory wills on behalf of the patients. The fourth application relates to a trust created by Mr G's father, under which Mr G is a trustee. In relation to the fourth application, the court is asked either to appoint a new trustee in place of Mr G or to make an order vesting the trust property in N and C on the grounds that N and C are absolutely beneficially entitled to the trust property. I will deal with this fourth application separately, and towards the end of my judgment, as the fourth application raises discrete points.
The Legal Principles
Part VII of the Mental Health Act 1983 deals with the management of the property and the affairs of patients. Under section 94, the functions dealt with in Part VII are exercisable by a nominated judge of the Court of Protection. By section 94(2), the functions of the judge under Part VII are exercisable where, after considering medical evidence, the judge is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs. I have considered the medical evidence in this case and I have already expressed my conclusion that I am so satisfied in relation to both Mr G and Mrs G.
Section 95 identifies the general functions of the nominated judge with respect to the property and the affairs of a patient. Section 95 provides:
“(1) The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient –
(a) for the maintenance or other benefit of the patient,
(b) for the maintenance or other benefit of members of the patient's family,
(c) for making provision for other persons or other purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or
(d) otherwise for administering the patient's affairs.
(2) In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient, and the rules of law which restricted the enforcement by a creditor of rights against property under the control of the judge in lunacy shall apply to property under control of the judge; but, subject to the forgoing provisions of this subsection, the judge shall, in administering a patient's affairs, have regard to the interests of creditors and also to the desirability of making provision for obligations of the patient not withstanding that they may not be legally enforceable.”
Section 96 identifies specific powers which may be exercised in relation to the patient's property and affairs. Section 96 is without prejudice to the generality of section 95. The powers conferred by section 96 are for the purposes identified in section 95. Section 96 includes the following provisions:
“(1) Without prejudice to the generality of section 95 above, the judge shall have the power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section and in particular may for those purposes make orders or give directions or authorities for –
…
(b) the sale, exchange, charging or other disposition of or dealing with any property of the patient;
…..
(d) the settlement of any property of the patient, or the gift of any property of the patient to any such persons or for any such purposes as are mentioned in paragraphs (b) and (c) of section 95(1) above;
(e) the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered;
…..”
The application by the receiver for authority to make a gift to C is made pursuant to section 96(1)(d). The application by N for the court to authorise a gift to him is also made under section 96(1)(d). The application by C for wills on behalf of the patients is made pursuant to section 96(1)(e).
Section 96(4)(b) provides that the power to make an order for the execution of a will for a patient shall not be exercised unless the judge has reason to believe that the patient is incapable of making a valid will for himself. As indicated above, on the basis of the medical evidence in this case, I have reason to believe that this requirement is satisfied in relation to both patients.
Section 97 contains supplementary provisions as to wills executed under section 96. I need not refer to the specific terms of that section.
The principles upon which the court should act in determining an application for the execution of a statutory will were considered by Sir Robert Megarry V.-C. in Re: D(J) [1982] Ch 237. At pages 243 to 244, he explained that the jurisdiction should be exercised on the following bases:
(1) it should be assumed that the patient was having a brief lucid interval at the time when the will is made;
(2) it should be assumed that during the lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed, he or she will relapse into the actual mental state that previously existed, with the prognosis as it actually is;
(3) the court should consider the actual patient and not a hypothetical patient; the court must take the patient as he or she was before losing testamentary...
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