Mental Capacity Case

Re M, N v O & P

SJ Lush

Sumnmary: This case concerned an application by M's work colleague to be appointed his deputy for property and financial affairs, in circumstances where it was anticipated that M's health problems would improve and he would regain capacity. M's wife contested the application and put herself forward as deputy.

Senior Judge Lush noted that pre-MCA authorities, which he considered to be still pertinent to the issue of the appointment of deputies, had set out an 'order of preference' in which P's relatives were preferred over strangers such as professional advisors or statutory bodies. Senior Judge Lush observed that:

"The court prefers to appoint a family member or close friend, if possible, as long as it is in P's best interests to do so. This is because a relative or friend will already be familiar with P's affairs, and wishes and methods of communication. Someone who already has a close personal knowledge of P is also likely to be better able to meet the obligation of a deputy to consult with P, and to permit and encourage him to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. And, because professionals charge for their services, the appointment of a relative or friend is generally preferred for reasons of economy. There are, of course, cases in which the court would not countenance appointing a particular family member as deputy. For example, if there had been physical or financial abuse; if there is a conflict of interests; if the proposed deputy has an unsatisfactory track record in managing his own financial affairs; and if there is ongoing friction between various family members that is likely to interfere with the administration of P's affairs. This list is not exhaustive."

Applying the balance sheet approach to the competing potential deputies, the court held that M's colleague should be appointed. The various factors the court considered were: ability to act; willingness to act; qualifications; place of residence; security; conduct before and during the proceedings; nature of relationship with M; M's wishes and feelings; views of others; effect of hostility; conflicts of interest; remuneration; and the terms of M's will. Senior Judge Lush found that the factors of 'magnetic importance' were "M's past and present wishes and feelings and the unanimous views of others, who are particularly close to him, as to what would be in his best interests. It would be wrong to frustrate his choice of N as his substitute decision-maker simply because his wife opposes it."

Comment: This case is a useful illustration of the approach the court will take to considering whether a deputy should be appointed, in circumstances where his or her application is contested.