(1) Under the Mental Capacity Act 2005, there is a presumption in favour of implementing P's wishes unless they are irrational, impractical, or irresponsible (with reference to resources), or there is a sufficiently countervailing consideration. (2) The appointment of donees jointly (rather than jointly and severally) under a power of attorney created the presumption that the donors wanted decisions made jointly or by neither appointee. (3) Mr and Mrs S's wishes (that if both daughters were unable to act jointly then neither should act singly) would be implemented, and an independent Deputy would be appointed.
In 2004 Mr and Mrs S executed an Enduring Power of Attorney appointing both daughters, C and V, jointly, to be their Attorneys. In practice it was V who administered the property and affairs: she later decided that the EPA should be registered, but C disagreed; therefore, V applied to the Court of Protection to be appointed Receiver. (During the course of proceedings, this was converted to an application to become Deputy under the new Mental Capacity Act 2005.)
In February 2008 V was appointed Deputy on an interim basis; C and Mrs and Mrs S made applications for review at an oral hearing, which took place on June 2008. The sole question by that stage was whether V or an independent professional should be appointed Deputy. The judge confirmed his original decision. C appealed, supported by Mrs and Mrs S.
The Mental Capacity Act 2005 created a sea change in the attitude of the law: (1) an official recognition that capacity is not a blunt "all or nothing" condition, but is issue specific; (2) an emphasis on the ascertainment of P's actual or likely wishes, views and preferences. These views and wishes, while not paramount, carry great weight: having his views and wishes taken into account and respected is a very significant aspect of P's best interests.
In practice, there is a presumption in favour of implementing P's wishes if the wish or view is (1) not irrational, (2) not impractical (physically), (3) not irresponsible (with respect to resources). This presumption could be rebutted by some potential sufficiently detrimental effect for P of doing so which outweighs this, including from an unappreciated factor if this would have made him change his wishes: the justification for overruling P must be strong and cogent for the action to be considered as the least restrictive under s1(6).
The judge erred in treating the oral hearing as an appeal against the original order, rather than a fresh assessment of best interests, which approach led to substantive errors of law.
(1) The appointment of C and V jointly (rather than jointly and severally) in the EPA created an almost inescapable inference that the donors wanted decisions made jointly or by neither appointee.
(2) Of central importance, the judge did not consider all the facts relevant to Mr and Mrs S's wishes that an independent Deputy should be appointed; additionally, as a matter of principle, he failed to accord the wishes the weight which the Act requires.
(3) The judge had wrongly focussed on V's suitability to administer the affairs, rather than on who would be better to manage them. The judge had felt V better suited to administer the affairs on a day-to-day basis, being a family member able to administer certain affairs in a way which gave pleasure to her parents. However, he had not considered the fact that a person may not be a suitable Deputy if he has aligned himself with one faction in a family dispute (V was a faction) and, in any event, an independent Deputy could enable V's personal touches to continue.
(4) The judge had not considered the separately-expressed views of two independent doctors that an independent Receiver should be appointed.
(5) The judge gave insufficient weight to the sense of frustration, impotence, anger and lack of self-worth which, given their current level of understanding, Mr and Mrs S would experience on being aware that their wishes had been overruled.
In conclusion, as Mr and Mrs S wishes (that if both daughters were unable to act jointly then neither should act singly) were not irrational, impracticable, or irresponsible, and there was no sufficiently countervailing consideration, it would be in their best interests to implement their wishes. Furthermore, this would confer on them the dignity of having their wishes respected. Therefore an independent Panel Deputy would be appointed. After about a year the position would be reviewed to see if the arrangements remained in accordance with their wishes.
Hearing: 20 and 25 November 2008
Judgment: 25 November 2008
Before: HHJ Hazel Marshall QC
Miss Barbara Rich (instructed by Harcus Sinclair) for the Appellant
Miss Beverly-Ann Rogers (instructed by Halliwells) for the Respondent
Mr Thomas Entwistle (instructed by Boyes Sutton & Perry) for S and S
"Judge Marshall considered the weight to be given to P’s own wishes and feelings in relation to any application made to the Court of Protection. She held that where P can and does express a wish or a view, which is not irrational, impracticable and irresponsible, then it should carry great weight and give rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of not doing so."
 1 WLR 1082,  LS Law Medical 97,  WTLR 315
Court of Protection: 2009 Report - published 10/6/10 - summary on page 15