Re G (TJ)  EWHC 3005 (COP)
The court considered the meaning of 'best interests' when deciding whether or not to direct a deputy to make maintenance payments from P's funds to her daughter. (1) The balance sheet of facts which P would draw up if he had capacity to make the decision (taking into account actual wishes, beliefs and values, and other factors) is a relevant factor for the court's decision: thus a substituted judgment can be subsumed into the consideration of best interests. (2) 'Best interests' does not only include the self-interest of P: it includes wishes (or those he would have formed had he capacity) even if altruistic and not self-interested, and even if P has no awareness of the fact that such wishes are being respected. (3) On the facts: (a) no weight would be given to the possibility that P might be thought to have done the 'right thing', principally because she could not participate in the decision in any way, and partly because the family disagreed about what was the right thing; (b) overall, given the absence of any countervailing factors, respect for what would have been P's wishes defined what is in her best interests; (c) the order for maintenance payments was made.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
25. Re G (TJ)(Mr Justice Morgan, 19 November 2010). www.bailii.org/ew/cases/EWHC/COP/2010/3005.html Mrs G was born in 1928, and has a son N, and a daughter C. This was an application to authorise Mrs G’s deputy to continue to make maintenance payments of £3,300 a month to C. At paragraph 65 of his judgment, the judge said: “Having identified the factors as best I can, it emerges that the principal justification, so far as Mrs G is concerned, for making the order for maintenance payments in favour of C, is that those payments would be what Mrs G would have wanted if she had capacity to make the decision for herself. I recognise that this consideration is essentially a “substituted judgment” for Mrs G. I am also very aware that the test laid down by the 2005 Act is the test of best interests and not of substituted judgment. However, for the reasons which I have tried to set out earlier, the test of best interests does not exclude respect for what would have been the wishes of Mrs G. A substituted judgment can be subsumed into the consideration of best interests. Accordingly, in this case, respect for what would have been Mrs G’s wishes will define what is in her best interests, in the absence of any countervailing factors. There are no such countervailing factors here. I therefore conclude that an order which provides for the continuation of maintenance payments to C is in the best interests of Mrs G.”
Hearing date: 10/11/10
Before: Morgan J
Miss Barbara Rich (instructed by Mullis & Peake LLP) for the Deputy
Mr David Rees (instructed by the Official Solicitor) for the Official Solicitor as litigation friend for G
Mr Michael King (instructed by Harcus Sinclair) for C
 All ER (D) 218 (Nov)