Thomson Snell & Passmore act in landmark Court of Protection case

02/02/2009

Martin Terrell acted as litigation friend in the case of Re P. This was the first reported case heard by a High Court judge dealing with statutory wills under the Mental Capacity Act 2005 and makes a significant change to the way in which such cases are dealt with.

For over two decades statutory wills (wills made for persons who lack capacity to make wills for themselves) had been made following a set of assumptions laid out in the 1982 case of Re D(J). These required the Court to make the will which a person would have made if in a hypothetical lucid moment he had a complete picture of the past and present as well as expert legal advice. In his detailed judgement, Lewison J concluded that the counter-factual assumptions and the substituted judgement of the Court are not part of the best interests approach adopted by the 2005 Act. The Act provides a structured approach to determining best interests. So long as this is followed, the Court may make its own value judgement as to what is in the person's best interests. 

The judgement must also be unique in opening with a quotation from Pride and Prejudice being concerned with the making of a statutory will and the appointment of a deputy to deal with an entailed estate. It also has wider consequences for anyone making a decision for a person who lacks capacity. It is often assumed that the decision maker is obliged to carry out a person's known wishes at any cost. This is not the case. The decision maker can take account of all the relevant factors in making the right decision in the person's best interests. 

Unfortunately the fascinating details of the case have not been reported and the reported judgement is restricted to the legal principles involved. Click here for the transcript.