L v NG [2015] EWCOP 34 (11 May 2015)

Posted on Wednesday, June 24th, 2015

Julie FitzpatrickThis judgment concerned an application by the sister of NG to be appointed as his deputy for property and affairs together with her sons.

NG had suffered from paranoid schizophrenia for many years and had been admitted to hospital under the Mental Health Act 1983 on many occasions. His assets consisted mainly of a home worth around £300,000, income from a discretionary trust and various welfare benefits. In her application, L stated that NG had attempted to dispose of his home in ways which indicated that he was unable to manage his property and finances. The medical report in support of the application stated that NG ‘does not understand the necessary processes required to manage his finances’ and ‘lacks insight’ into the impact of his illness on his functioning. NG objected to the application and was supported in his objection by a brother and a previous social worker. He maintained that he did not need a deputy and that he did not want his sister to be his deputy.

Section 16(4) of the Mental Capacity Act 2005 states that when deciding whether it is in the relevant person’s interests to appoint a deputy, the court must have regard to section 4 (best interests) and to the principle that a decision by the court is to be preferred to the appointment of a deputy to make a decision. The fact that a person lacks capacity to manage their property and affairs does not automatically mean that it is in their best interests to appoint a deputy. The best interests requirements of section 4 require the court to consider the wishes, feelings, beliefs and values of the person concerned. One of the principles of the Mental Capacity Act 2005 is that before the act is done, or the decision is made, consideration must be given 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.

District Judge Eldergill found that a deputyship order was unnecessary or not in NG’s best interests, and that any risks in respect of NG’s property and financial affairs which would be minimised by the appointment of a deputy were outweighed by the effect of such an order on his self-esteem. He ordered instead that a restriction be entered in the Land Registry requiring the court to authorise any dealings with his home, the purpose of which was to act as a light touch safeguard. L’s application for the appointment of a deputy was dismissed.

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