The Court of Protection and the Questions of “Best Interest”

October 2020

One of the roles of the Court of Protection is to consider cases where decisions need to be made on behalf of individuals who do not have the mental capacity to do so themselves.

The types of decisions the Court of Protection get involved with are very varied. Some are reasonably simple: how the person should be cared for, where they should live or how their estate should be managed. Others are more complicated, such as the two case law examples discussed below.

However unusual the case, the Court of Protection will address it in the same way; they will rule in favour of the course of action they believe to be in the individual’s best interest.

How is this decided?

It’s not always easy for the Court of Protection to determine what is in an individual’s best interests. They have to hear evidence from all parties involved in the situation. They will also collect information about the individual and any relevant decisions they have made in the past.

In some cases, the question of ‘best interest’ may be reasonably straight forward. For example, a court may be asked to agree to a medical procedure that would be likely to improve the individual’s quality of life. In a case like this, it may seem quite clear which course of action would be in the individual’s best interest.

However, not all questions of ‘best interest’ are this clear cut.

The case of Bagguley v E [2019] EWCOP 49

In 2019, the court had to consider whether or not a deputy should be allowed to take a DNA sample from an individual with dementia (E) in order to confirm whether or not he was the biological father of his three adult children.

This was a difficult case as E’s dementia was so advanced that there was no chance he would be able to comprehend the results of the test. Could it, therefore, be considered in his best interest for the test to be done? The court needed to consider the more abstract best interests of E, for instance; that his descendants remember him fondly after his passing and that his Will was not a source of contention.

The court also had to consider previous behaviour to ascertain whether they felt E would decide to have the test done if he still had the mental capacity to do so. E had actually made the decision to have his own test done in 1991, though the results were considered inconclusive.

Given this information, the Court of Protection ruled in favour of the DNA testing. This was because they believed it was a choice E would’ve made himself, given the opportunity. They also believed that it was an E’s best interest as it would hopefully prove without doubt that E was the biological father of the three adults. This would promote greater unity between the four of them and would significantly reduce the likelihood of contested probate after E’s death.

The case of PBC v JMA & Ors [2018] EWCOP 19

In 2018, the court ruled on the case of JMA, who had an estate worth over £18 million. JMA’s attorney, her son, PBC, had made an application to the court to be able to make gifts from the estate totalling £7 million. This sum included a £6 million payment to PBC himself, as well as payments to JMA’s grandson and charities.

The purpose of these gifts was to reduce the amount of inheritance tax that would be payable after JMA’s death. Though JMA had dementia and no longer had the mental capacity to manage her own estate, she was not considered to be in significant danger of dying within the next few years. If JMA was to live for three years after the gifts were made, her estate would be liable for a discount on the IHT payable on that £7 million. If she was to live for seven years after the gift, that £7 million would not be subject to inheritance tax at all.

Just as in the Bagguley v E case, there was no clear benefit to JMA and her quality of life if this action was granted. JMA unfortunately no longer had the mental capacity to either enjoy giving away significant gifts or to be concerned about what would happen to her estate after her death. However, it was important for the Court of Protection to think about what would’ve been in JMA’s best interest if she did still have mental capacity, and the actions she would likely have taken herself should she have been able to do so.

They also considered whether the gift would affect JMA’s current quality of life. However, JMA’s estate was sizable enough that gifting the £7 million would not result in any hardship for her

Based on JMA’s history of tax planning and gifting, the court approved PBC’s request. This decision was made on the basis of the gifts JMA had previously made, and the fact that all parties who would benefit from the £7 million had previously been beneficiaries of these. It was determined that making these gifts could potentially save the estate £3 million in inheritance tax, which the court felt was a fact JMA would have considered in her best interests to plan for.

How could this affect you?

If you have been appointed as an attorney or a deputy for a loved one who no longer has mental capacity, you may be used to making decisions in their best interest. However, you could find yourself faced with a decision that’s outside the scope of what you are legally allowed to do on your loved one’s behalf.

In cases such as these, you would need to apply to the Court of Protection for permission to act. A specialist Court of Protection solicitor would be able to help you effectively manage this process.