P, Re

Under the Mental Capacity Act 2005, decisions made for a person lacking capacity must be based on that person’s best interests, not substituted judgment. Earlier guidance developed under the Mental Health Acts cannot be directly applied to statutory wills under the 2005 Act.

The decision-maker must consider all relevant circumstances, including the person’s past and present wishes, beliefs, values, participation, and the views of appropriate consultees. Those wishes may carry great weight, but they are not presumptively determinative. The decision-maker must form an objective value judgment and may consider the least restrictive option, without treating it as decisive. A third party should not deliberately make an unwise decision merely because the person would have made it. The court may also consider how the person will be remembered after death.

P lacked mental capacity and was domiciled in California. The Bank of America, appointed by a Californian court as conservator of P’s person and property, applied to the Court of Protection for a statutory will dealing with an entailed estate and for the appointment and powers of a deputy.

The central issue was whether principles developed under the former Mental Health Acts, particularly the substituted-judgment approach to statutory wills, continued under the Mental Capacity Act 2005. The court also considered the effect of a statutory will concerning immovable property in England and Wales where P was domiciled abroad.

1. The court directed that a statutory will be executed on behalf of P and directed the appointment of a deputy, applying the structured decision-making process in the Mental Capacity Act 2005.

2. The former statutory-will authorities, including Re L (WJG) [1966] Ch 135, Re D (J) [1982] Ch 237, Re C (A Patient) [1992] 1 FLR 51, and G v Official Solicitor [2006] WTLR 1201, derived from statutory provisions requiring the court to ask what the patient might have done if not mentally disordered. That substituted-judgment approach could not be directly applied under the 2005 Act, which contains no such counter-factual instruction.

3. The governing question under sections 1 and 4 was what was in P’s best interests. The decision-maker had to consider all relevant circumstances and follow the statutory steps, including encouraging P’s participation, considering his past and present wishes and feelings, beliefs and values, and taking account of appropriate third-party views. The decision required the decision-maker’s own objective value judgment.

4. P’s wishes and feelings were to be given great weight, but they were only one part of the balance. Section 1(6) required regard to be had to less restrictive alternatives; it did not make that consideration determinative. The court therefore declined to frame the effect of P’s wishes as a presumption.

5. A third-party decision-maker should not consciously make an unwise decision merely because P would have made it. Such a decision would rarely be in P’s best interests. There was no need to assume that P had taken legal advice or to reconstruct what he would have done with advice he had not received, although the absence of advice could reduce the weight given to his wishes.

6. When deciding the contents of a will that would operate only after P’s death, the decision-maker could take into account P’s interest in being remembered with affection and as having done the right thing by his will.

7. The court held that the provisions governing the effect of a statutory will were not a jurisdictional bar. They assumed that the court had ordered a will and addressed its legal effect. A will executed for a person domiciled outside England and Wales could operate so far as it concerned immovable property situated within England and Wales.