Bashir v Bashir

A person subject to the jurisdiction of the Court of Protection cannot validly dispose of or deal with property placed under a deputy’s general authority, even if the person later regains capacity. Capacity is task-specific and must be assessed by reference to the decision in question. A purported settlement is ineffective where the offer has lapsed, been rejected by the authorised deputy, or was never acted upon. A charging order and judgment debt remain effective unless varied or set aside.

The claimant sought an order for sale of property owned by the defendant to enforce a charging order securing a judgment debt arising from the defendant’s misappropriation of funds while acting as the claimant’s deputy. The defendant relied principally on an alleged settlement for £140,000, said to have been accepted after the claimant regained capacity. A further issue arose as to whether the claimant could contract concerning property and affairs while remaining subject to the jurisdiction of the Court of Protection. A late application for a stay based on an alleged will was also opposed.

1. Order for sale. The claimant was entitled to an order for sale. The alleged will disclosed no defence with a real prospect of success because there was no evidence that the property had been held as a tenancy in common. In the absence of such evidence, beneficial interests followed the legal interests and the defendant took the deceased co-owner’s interest by survivorship: s. 3(4) Administration of Estates Act 1925; CarrGlynn v Frearsons (A Firm) [1999] Ch 326.
2. Under the former statutory framework, a person placed under the jurisdiction of the Court of Protection could not make a valid lifetime disposition of property, even during a lucid interval: Re Beaney [1978] 1 W.L.R. 770, summarising Re Walker [1905] 1 Ch. 160 and Re Marshall [1920] 1 Ch. 284.
3. That principle continued under the Mental Capacity Act 2005. The claimant’s deputy had general authority to take possession or control of his property and affairs. Any purported disposition or dealing with that property, including the judgment debt, was void. This remained so even if the claimant had regained capacity at the relevant time.
4. Capacity is task-specific. Evidence that the claimant could perform ordinary activities did not establish capacity to manage substantial property and financial affairs. The expert evidence showed insufficient executive functioning for that task.
5. In any event, no binding settlement had been made. The offer was open for seven days and had lapsed; it was addressed to the deputy, who rejected it; and neither party took steps towards performance. The withdrawal of the defendant’s appeal did not establish a settlement.
6. The judgment debt and charging order remained in force unless varied or set aside. The court therefore ordered a sale and directed that the terms of the order be determined if not agreed.