|Court of Protection: an Action in the Chancery Division be Continued|
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An application determining whether a party has the necessary mental capacity to decide if an action in the Chancery Division of the High Court should be continued was heard before the Court of Protection. Court held the party did not have the necessary mental capacity.
In 2005, Mr S at the age of 72 suffered a stroke. Shortly thereafter, Mrs D befriended him and began visiting him regularly and took on the role of his primary carer. In 2006, Mr S signed an enduring power of attorney in which he appointed Mrs D and two partners of a firm of solicitors. Between 2006 and 2007 Mr S made gifts to Mrs D amounting to £549,141.56. Mr S's daughter, R, questioned the nature of the payments. In 2007, R applied to the Court of Protection to be appointed as her father's receiver pursuant to the provisions of section 99 of the Mental Health Act 1983. Mrs D lodged an objection to R's application and sought to register the enduring power of attorney, which was in turn contested by R. n 2007, the Court of Protection decided that Mrs D was unsuitable to be Mr S's attorney because the transactions in her favour called for an explanation and it would be presumed that they were procured by undue influence unless she could provide a satisfactory explanation to the contrary. The Court of Protection therefore appointed R as receiver.
In 2009, R commenced proceedings in the Chancery Division of the High Court against Mrs D and her children. The Court of Protection had granted authority for R to take and conduct the Chancery proceedings on Mr S's behalf. However, this entitlement was dependent on Mr S lacking the capacity to do so himself- following from the basic principle that R's only right as his deputy was to take decisions that he was unable to take for himself. Mrs D applied to the Court of Protection for Mr S' capacity to be determined.
A number of expert reports were obtained in respect of Mr S' capacity.
Henderson J sitting in the Court of Protection considered the question of whether Mr S was able to understand the information relevant to the decision to be made. It was necessary that he was able to understand as a minimum the nature and extent of the relationship of trust and confidence which he arguably reposed in Mrs D, the extent to which it may be said that his gifts to her could not readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on her to rebut any presumption of undue influence which might have arisen. Henderson J also held that, since Mrs D's relationship with Mr S was still subsisting, the court would need to scrutinise with particular care whether Mr S was able to stand back from the impugned transactions with sufficient detachment to truly understand the nature of the claim.
Henderson J concluded that it was clear that Mr S lacked the necessary capacity. He had only an incomplete, partially correct, and limited understanding of the nature of the current proceedings. He also had little understanding of the value of money, and without prompting had no idea at all of the size of the gifts which he made to Mrs D. Henderson J agreed the disparities and contradictions were staggering and remarkable.
Henderson J then considered whether Mr S was able to use or weigh the relevant information. Given the conclusion in respect of his inability to understand the information, it was held Mr S lacked the requisite capacity to do so.
As a consequence, the Court of Protection held that on the balance of probabilities that Mr S was unable to make the decision whether or not to continue the Chancery proceedings.
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Published on our website on Oct.28, 2010