P, Re [2009] EWCOP 163 (09 February 2009)

P, Re [2009] EWCOP 163 (09 February 2009)

The Mental Capacity Act 2005 introduces a structured and objective best interests test for decisions made on behalf of persons lacking capacity, replacing the substituted judgment approach under previous legislation. The court must consider all relevant circumstances, including P's wishes and feelings, but is not bound by them. The court has jurisdiction to order the execution of a statutory will for P in respect of immovable property in England and Wales, even if P is domiciled elsewhere. The structured decision-making process under the Act was followed, and it was determined that a statutory will should be executed on behalf of P and a deputy appointed.

Citation
[2009] EWCOP 163
Parties
Applicant/conservator: Bank of America; Respondent/litigation Friend: P (Protected Person); Interested Party: Interested Party
Jurisdiction
England and Wales
Judgment Date
09 February 2009
Procedural Posture
Court of Protection Property and Affairs Application / Judgment on Application for Statutory Will and Appointment of Deputy
Outcome
Application granted
Legal Topics
Statutory Wills, Entailed Estates, Best Interests Test, Appointment of Deputy, Mental Capacity Act 2005
Mental Capacity Law Property Law Wills and Probate Statutory Wills Entailed Estates Best Interests Test Appointment of Deputy Mental Capacity Act 2005

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Parties

Bank of America

Applicant/conservator

P (Protected Person)

Respondent/litigation Friend

Interested Party

Interested Party

Procedural Posture

Court of Protection Property and Affairs Application / Judgment on Application for Statutory Will and Appointment of Deputy

Legal Issues

  1. 1 Whether the court should direct the execution of a statutory will on behalf of a person lacking capacity under the Mental Capacity Act 2005
  2. 2 Whether the court should appoint a deputy and determine the scope of the deputy's powers
  3. 3 How the best interests test under the Mental Capacity Act 2005 applies to the making of a will for a person lacking capacity

Ratio Decidendi

The Mental Capacity Act 2005 introduces a structured and objective best interests test for decisions made on behalf of persons lacking capacity, replacing the substituted judgment approach under previous legislation. The court must consider all relevant circumstances, including P's wishes and feelings, but is not bound by them. The court has jurisdiction to order the execution of a statutory will for P in respect of immovable property in England and Wales, even if P is domiciled elsewhere. The structured decision-making process under the Act was followed, and it was determined that a statutory will should be executed on behalf of P and a deputy appointed.

Court Disposition

Application granted

Orders

  • A statutory will is to be executed on behalf of P in accordance with the court's directions.
  • A deputy is appointed for P; the scope of the deputy's powers is determined by the court.