Since the Mental Capacity Act 2005 came into force in 2007, there has been uncertainty about whether Court of Protection cases decided before the Act are still relevant.

Last month, I attended a presentation given by Senior Judge Denzil Lush for the Association of Contentious Trust and Probate Specialists (ACTAPS), which shed light on the issue. He discussed a Judgment he had recently handed down In the Matter of M on 28 January 2013. At present, this case has not yet been reported.

In brief, the matter concerned a 70-year-old successful businessman who owned assets in the region of £4.6 million.  While on holiday in December 2012, the businessman suffered a heart attack and a stroke. It is hoped that his period of incapacity will be temporary.

Both his wife and a friend made competing applications to be appointed as his Deputy.

Senior Judge Denzil Lush noted that, generally speaking  (and taking into account the overriding duty to consider the best interests of the incapacitated)  the Court’s order of preference in selecting a Deputy is:

  • Spouse or partner;
  • Any other relative who takes an interest in the person’s affairs;
  • A close friend;
  • A professional adviser, such as the family’s solicitor;
  • A Local Authority’s social services department;
  • A panel deputy, as a last resort.

Senior Judge Denzil Lush then applied the balance sheet approach to the competing applications, which is an approach adopted in the Family Courts. He compared the strengths and weaknesses of both applications in respect of a range of issues, deciding that, despite the order of preferences set out above,  the businessman’s friend should be appointed Deputy, not his wife.

Borrowing another test from the Family Courts, Senior Judge Lush then stated that two factors were of ‘magnetic importance’. These were that the businessman’s past wishes were for his friend to manage his affairs and that other family members and  people close to him thought his friend should be appointed Deputy, not his spouse.

Of particular interest is that the Senior Judge’s view was that case law decided before the Mental Capacity Act 2005 is still highly relevant. In the Judgment itself, several old cases were referred to and relied on, including Re Le Heup (1811) 18 Ves Jun 221 and Re Davy (a Lunatic) [1892] 3 Ch 38.

The following quote from the Judgment  demonstrates that cases decided before the Mental Capacity Act 2005 are still highly relevant:

“The court has a continuous history dating back to the thirteenth century, and over the course of 750 years it has acquired considerable experience of managing the affairs of persons who lack capacity. Respectfully, I must disagree with those who have suggested that any authorities predating the Mental Capacity Act are best consigned to history”. 

It is hoped that other branches of the judiciary will follow the Court of Protection’s sensible approach in this case.

By Paul Davis. Paul is a Solicitor at BHW Solicitors in Leicester and regularly writes on probate matters. Paul can be contacted on 0116 281 6231 or at

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