CHAPTER ONE
CAPACITY: WHEN DOES ONE BECOME “P”?
Capacity is key when making an application to the Court of Protection. This is because the Court of Protection will only consider cases where the person involved has, on the balance of probabilities, lost the capacity to make the decision in question.
Mr Justice Hayden’s judgment in the case of PH v Betsi Cadwaladr University Health Board [2022] [1] is a helpful reminder of this. In his words, “The Court has no business in telling capacitious individuals what is in their best interests nor any locus from which to compel others to bend to the will either of what capacitious individuals may want or what the court might consider they require. Such a regime would be fundamentally unhealthy in a mature democratic society and would have the collateral impact of undermining the principle of autonomy which is central to the philosophy of the MCA.” [2]
| Author’s note – There are instances when someone may not necessarily lack capacity but is considered to be vulnerable. The Court of Protection will not hear such cases but the High Court’s inherent jurisdiction can be invoked. However, the High Court will only intervene where there is a demonstrated need to protect a vulnerable person from abuse or the real possibility of abuse. The risk of future possible abuse must be a “real” possibility and not a “fanciful” risk. |
This takes readers to the next section – if the Court of Protection will only intervene in cases where P lacks capacity, how is P’s capacity (or lack of) determined before an application is made to the Court of Protection?
1.1 – P’s capacity pre-Mental Capacity Act 2005
Prior to the Mental Capacity Act 2005, English common law adopted a basic test to determine capacity. This involved considering whether the person concerned understood, in broad terms, what they were doing and the implications of their actions.
Over time, different capacity tests were developed in respect of specific decisions[3] – such as the making of a Will (Banks v Goodfellow[4] in 1870); gifting (Re Beany[5] in 1978); deciding on a place of residence and having contact with others (Re MB (Medical Treatment)[6] in 1997); engaging in litigation (Masterman-Lister v Brutton and Co[7] in 2002); or entering into a marriage contract (Sheffield City Council v E & Anor[8] in 2004).
| Author’s note to practitioners in the Chancery Division of the High Court – the Mental Capacity Act 2005 has not replaced the common law tests. The Mental Capacity 2005 Code of Practice states that “The Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate.”[9] The Mental Capacity Act 2005 is there to “supplement” the common law tests and to be used as a “cross-check”. Common law tests therefore still apply when bringing a case in the Chancery Division. |
1.2 – P’s capacity post Mental Capacity Act 2005 and the presumption of capacity
The Mental Capacity Act 2005 introduced 5 main principles:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.[10]
It is recommended that readers familiarise themselves with these principles. The author will focus on the first principle in this section since it is of particular importance that lay attorneys and deputies understand the risks of drawing generalised conclusions on P’s capacity.
One of the key features of the Mental Capacity Act 2005 is that there is a presumption of capacity. The starting point, therefore, is that one has the capacity to make a decision for themselves unless there is evidence to suggest otherwise. This presumption is clearly stated in section 1(2) of the Mental Capacity Act 2005: “A person must be assumed to have capacity unless it is established that he lacks capacity.”
Accordingly, all adults must be presumed to be competent until the contrary is proven and the burden of proof rests on those asserting incapacity. Evidence of P’s incapacity is therefore key to any application made to the Court of Protection. Should there not be convincing evidence regarding P’s incapacity, the Court of Protection will refrain from making a best-interests decision on behalf of P.[11]
The Mental Capacity Act 2005 also sets out clear parameters when it comes to defining those who lack capacity. A person is deemed as lacking capacity in relation to a matter if “at all material times he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” [12]
Some practitioners reading this section may relate to the follow scenario: you are approached by a prospective client who has already formed the view that someone they know has been diagnosed with dementia and therefore lacks capacity. As a matter of course, you should put the following question to the prospective client: “What decision do they lack the capacity to make?” This is because there is not a blanket approach to capacity under the Mental Capacity Act 2005. Different levels of capacity are required for different activities or transactions. This is not a novel concept as evidenced by the various common law tests developed over the years.[13]
1.3 – Different levels of capacity for different decisions: case law
The importance of understanding and differentiating between the different decisions in question was highlighted in the case of A, B and C v X, Y and Z [2012][14] which came before Mr Justice Hedley in the Court of Protection. It is recommended that readers review the detailed judgment which is a very helpful tool to use when analysing the various legal tests on capacity, including P’s fluctuating capacity.
In this case, the Court of Protection was required to determine whether P had the capacity to make a series of decisions, in particular, the decision to:
- marry;
- make a Will;
- revoke or grant a power of attorney;
- manage his affairs;
- litigate; and
- decide with whom he has contact.
This case involved P, a skilled and highly intelligent man, whose former wife had died in April 2008. P and his wife had been married for 56 years and her death was a great shock to him. Following his wife’s death, in May 2008, P was diagnosed with dementia. A few months later, in September 2008, P made Lasting Powers of Attorney appointing his three children as his attorneys.
A carer came on the scene in 2010 and in October 2010, P expressed the wish to marry the carer. This caused conflicts between P and his children resulting in court proceedings to determine P’s capacity to make decisions.
Evidence from two psychiatrists, Professor Jacoby and Dr Prabhakaran, were obtained. The psychiatrists differed in their assessment of P’s capacity. Further evidence from Dr Poz, a neuropsychologist, was obtained and he remained neutral. Ultimately, P’s capacity to make the decisions in question was a matter for the Court of Protection to determine.
After considering the main principles set out in the Mental Capacity Act 2005, the medical and witness evidence as well as the facts before him, Mr Justice Hedley found that (using the same numbering as above in respect of the specific decisions):
- the applicants failed to satisfy the Court that P lacked the capacity to marry;
- P had a “qualified”[15] capacity when it came to testamentary capacity. Mr Justice Hedley could not make a general declaration regarding testamentary capacity and commented that as a result, any Will made by P, if unaccompanied by contemporaneous medical evidence asserting capacity, would be seriously open to challenge;
- P had “qualified”[16] capacity when it came to making and/or revoking a power of attorney and once again, unless accompanied by contemporaneous medical evidence of capacity, this would give rise to a serious risk of challenge or refusal to register;
- in light of Dr Poz’s evidence, on the balance of probabilities, P lacked the capacity to manage his own affairs;
- although there are aspects of the case that P could understand and follow, P lacked the capacity to conduct the litigation in question. [17]
Determining capacity is not as simple as it may initially seem and general assumptions should not be made. The above case is an example of the various issues at play and a stark reminder that the Court of Protection will not adopt a blanket approach when it comes to P’s capacity. Each and every decision will be reviewed separately before a declaration is made in respect of the decision in question.
1.4 – Case study
| Richard is a widower and was diagnosed with dementia 2 years ago. His condition is gradually deteriorating. Recently, Richard’s son, David, has noticed that when discussing his affairs, Richard often gets confused regarding the ownership of his house and who he would like to leave his assets to after his death since he has not made a Will. Even though Richard often gets confused, his life has not changed much and he is managing just as he was before. However, David is concerned. Since his father never made a Power of Attorney, you are asked by David to advise on whether a deputy should be appointed to manage Richard’s finances and a statutory will should be considered. |
In the above scenario, the following assumptions are likely to be made by David:
(i) Richard has been diagnosed with dementia and therefore no longer has the capacity to make decisions.
(ii) Richard should not be handling his finances and a deputy should be appointed in the absence of a Power of Attorney.
(iii) An application is now required for a statutory will.
These are common pitfalls which should be avoided and the author sets out below how a matter such as this one should be addressed.
Assumption 1: Richard has been diagnosed with dementia and therefore no longer has the capacity to make decisions.
Whilst it is recognised that developing a form of dementia or sustaining a brain injury can impair the functioning of the brain, the diagnosis of a medical condition itself does not automatically render someone incapable of making decisions for themselves. Readers are reminded that under the Mental Capacity Act 2005, there is a presumption that Richard has capacity.
It is noted that Richard is managing just as he was before. It would be wrong for David to assume that his father is no longer capable to make decisions regarding his property and affairs without any evidence to the contrary. However, it is also recognised that given the nature of Richard’s progressive illness, his capacity to manage his finances is likely to diminish over time. David should be advised, at this early stage, to support his father in making decisions (if such support is needed) and keep matters under regular review.
Assumption 2: Richard should not be handling his finances and a deputy should be appointed in the absence of a Power of Attorney.
Appointing a deputy simply because Richard has been diagnosed with dementia would be premature. The focus should be on what decision is being contemplated at this present time and whether Richard is able to make it. This is because capacity is decision and time specific.
If Richard retains the capacity to make decisions regarding his affairs despite his diagnosis, it would be sensible, at this stage, for David to discuss and explore with his father the possibility of making a Lasting Power of Attorney and plan for the future. If Richard has the capacity to make a Lasting Power of Attorney and proceeds with making one, it is advisable for the practitioner and/or the certificate provider[18] to keep a clear record of how Richard’s capacity was assessed and the conclusion reached.
However, Richard may decide not to make a Lasting Power of Attorney at this present time. As time goes by, Richard may find that he is no longer able to manage all his affairs but finds himself capable of purchasing his grocery and paying for day-to-day modest expenses. At this point, David should seek a report on Richard’s capacity to manage his property and affairs. If the report concludes that Richard no longer has the capacity to manage his finances, then making an application to the Court of Protection for the appointment of a deputy would be in Richard’s best interests. This is when it would be justifiable for David to take the necessary steps to ensure that a deputy is appointed to manage his father’s finances.
| Author’s note – Capacity is not merely decision-specific. It is also specific in relation to different transactions of the same type of decision. In this case study, it would appear that Richard retains some level of capacity to manage his finances since he is able to pay for small expenses. Even after a deputy is appointed, the deputy should assist Richard with making smaller decisions regarding his finances, such as providing him with a weekly allowance to manage his outgoings. It is important not to strip Richard/P of all their freedom. |
Assumption 3: An application is now required for a statutory will.
It is important to remind David that there are 2 separate decisions being contemplated: whether Richard can (i) manage his financial affairs and (ii) make a Will. As mentioned in Chapter 1.4, a blanket approach to Richard’s capacity should not be applied.
A separate report should be sought regarding Richard’s testamentary capacity. A report which concludes that Richard lacks the capacity to manage his financial affairs does not necessarily mean that Richard cannot make a Will. The author has seen medical reports confirming that P has the capacity to make a Will but lacks the capacity to manage their finances. This may come as a surprise to some readers but it is not unexpected given that different levels of understanding are required for different decisions.[19] For instance, the level of understanding required to make a simple and straightforward Will is likely to be lower than the level of understanding required to manage an investment portfolio involving numerous stocks and shares.
If the report concludes that Richard lacks testamentary capacity, an application for a statutory will can be made if it is considered to be in Richard’s best interests to do so.[20]
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[1] PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16 (31 March 2022).
[2] PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16, para 19.
[3] Listed in the Mental Capacity Act 2005 Code of Practice, chapter 4.
[4] Banks v Goodfellow (1870) LR 5 QB 549.
[5] Re Beaney [1978] 1 WLR 770.
[6] Re MB (Treatment) [1997] EWCA Civ 3093 (26 March 1997).
[7] Masterman-Lister v Brutton and Co [2002] EWCA Civ 1889 (19 December 2002).
[8] Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam) (02 December 2004).
[9] Mental Capacity Act 2005, section 1.
[10] See Mental Capacity Act 2005, section 1(2)-(6).
[11] See Chapter 1 – the case of PH v Betsi Cadwaladr University Health Board [2022].
[12] Mental Capacity Act 2005, section 2(1).
[13] See Chapter 1.1 for the various common law tests.
[14] A, B and C v X, Y and Z [2012] EWHC 2400 (COP).
[15] The Judge alluded to borderline capacity and found that there will undoubtedly be times when P lacks capacity just as there will also be many times when he retains it.
[16] See footnote 21.
[17] A, B and C v X, Y and Z [2012] EWHC 2400 (COP) (Reported Judgment), paras 37-45.
[18] See section 10 of a Lasting Power of Attorney instrument and the statement given by a certificate provider.
[19] See Chapter 1.3 – the case of A, B and C v X, Y and Z [2012] EWHC 2400 (COP) (Reported Judgment).
[20] Readers are advised to go through the decision-making process which is addressed in Chapter 6 and seek advice before making a statutory will application.