New Court of Protection Case Regarding Decision Making by Adults with Deputyship Order

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A new case has decided that where a person has had a deputy appointed by the Court of Protection, then they cannot make gifts or enter into transactions for themselves, even if they believe they have regained capacity (a “lucid interval”).

The facts of the case are complex, but in summary, Bashir v Bashir [2019] EWHC 1810 (Ch) considered an application by a claimant who wanted a declaration from the Court of Protection that:

  1. He had capacity to accept a settlement offer from his sister and previous deputy in respect of sums that she had stolen from him when she was deputy
  2. He was able to accept the offer on his own behalf, despite having a deputy in place who chosen not to respond to the offer

A brutal attack in 1993 had left the claimant with very significant injuries, including a brain injury, and a substantial amount of money had been awarded to him following a successful personal injury claim. His previous deputy had taken £1,389,611 from his estate during the period between 2008 and 2011, and offered just £140,000 in settlement in May 2013.

The claimant wanted to accept this offer in July 2013, and had attempted to do so. He was very frustrated that his new deputy had not agreed with his view, and that she had not accepted it on his behalf. He wanted confirmation from the Court that he was both able to accept the offer, and that he had already done so.

The Court found that there had been no recent authority on the issue of whether a person under the jurisdiction of the Court of Protection could make decisions for themselves about financial matters during lucid intervals. The Court looked at the legislative regime that was in place before the Mental Capacity Act 2005, and found that the previous legislation (Pt VII of the Mental Health Act 1983) said that ‘once a patient had been placed under the jurisdiction of the Court of Protection, they could not make any valid lifetime disposition of their property, even in a lucid interval: Re Beaney [1978] 1 W.L.R.770 at 772, summarising the effect of Re Walker [1905] 1 Ch.160 and Re Marshall [1920] 1 Ch.284. This was because upon the making of the order their property had passed out of his control. Any disposition was inconsistent with that control, and therefore void.

The Court decided that the claimant was unable to the offer from his former deputy without the authority of his new deputy.

This case raises a number of questions about how the Principles of the Mental Capacity Act 2005 should be interpreted in practice, and also how effectively the reforms set out by the House of Lords Select Committee in respect of the implementation of the Mental Capacity Act 2005, namely the need to ‘move from protection and paternalism to enablement and empowerment’ have been integrated into practice.

If you have questions regarding a deputyship, or any other matter that involves the Court of Protection, please contact our specialist team.