The Court of Protection is not bound by the substituted judgment approach from the previous legislation, including the Mental Health Acts 1959 and 1983, but must apply the Mental Capacity Act 2005 best interests approach (the general philosophy of which is discussed)
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Court of Protection — Execution of statutory will — Approach to be adopted when making decisions about property and welfare of persons lacking capacity — Mental Capacity Act 2005 (c 9)
When making decisions about the property and welfare of persons lacking capacity, the overarching principle pursuant to the Mental Capacity Act 2005 was that any decision made on behalf of that person must be made in his best interests. The guidance given under the Mental Health Acts 1959 and 1983 about the making of settlements or wills could no longer be directly applied to a decision made under the 2005 Act.
Lewison J, sitting in the Court of Protection, so held when directing that a statutory will be executed on behalf of P, a tenant in tail in possession who lacked mental capacity, on an application by the Bank of America as conservator of P’s person and property.
LEWISON J said that the court had power, under the 2005 Act, to order the execution of a will dealing with immovable property situated in England and Wales irrespective of a patient’s domicile. When making decisions about the property and welfare of persons lacking capacity, the overarching principle was that any decision made on behalf of that person must be made in his best interests. That approach was not the same as inquiring what that patient would have decided if he had had capacity, namely the “substituted judgement” approach. Accordingly the guidance given under the Mental Health Acts 1959 and 1983 about the making of settlements or wills could no longer be directly applied to a decision made under the 2005 Act. While the question posed in section 1(6) of the 2005 Act, that before an act was done or a decision made under the Act regard must be had to whether the purpose for which it was needed could be as effectively achieved in a way that was less restrictive of the person’s rights and freedom of action, was an important question, it was not determinative. The only imperative was that the decision must be made in the patient’s best interests. While the patient’s wishes must be given weight, they were only one part of the balance in the balance sheet approach endorsed by Parliament. The decision maker must consider the beliefs and values that would be likely to influence the patient’s decision if he had capacity and also the other factors he would be likely to consider if he were able to do so. While in reaching a decision a third party decision maker would if appropriate take legal or other advice, either medical or financial or advice of any other kind, and the court would of course act according to the law and be assumed to have sufficient knowledge of the law to make whatever decision it was called upon to make, there was no need to assume that the patient had taken legal advice and then attempt to decide what he would have done with that advice if he had had capacity. If the patient’s wishes had been formed without having taken legal advice in circumstances where a person with capacity would have taken legal advice, that might be a reason for giving them less weight than might otherwise have been the case. Further, when deciding what provision should be made in a will to be executed on a patient’s behalf, while a patient’s best interests would be served by giving effect to his wishes, the decision maker was also entitled to take into account how the patient would be remembered after his death.
In re P  EWHC 163 (Ch);  WLR (D) 41
Court of Protection: Lewison J: 9 February 2009
Appearances: David Rees (Farrer & Co) for the applicant; Michael O’Sullivan (Thomson Snell & Passmore) for P; Alan Boyle QC and Barbara Rich (Russell-Cooke) for an interested party.
Reported by: Nicola Berridge, solicitor.
In the context of a statutory will application, Mr Justice Lewison considered the difference between substituted judgment and best interests, and held that the earlier law regarding the making of statutory wills, including the landmark decision of Sir Robert Megarry V-C in Re D(J)  2 All ER 37, is no longer good law because it applied a substituted judgment test.
Re P (Statutory Will)
 NPC 24,  WTLR 651,  EWHC 163 (Ch),  LS Law Medical 264,  2 All ER 1198
Duplicate Bailii citation number:  EWHC 163 (COP)
Court of Protection: 2009 Report - published 10/6/10 - Summary on page 15