Your wish is my command

Back in 1816, Lord Eldon spoke of 'considering what the Lunatic would probably do, and what it would be beneficial to him should be done' (ex parte Whitbread (1816) 2 Mer 99). Nearly two centuries later, Re P sets out a modern approach to reconciling these subjective and objective elements under the Mental Capacity Act 2005.

The Mental Capacity Act 2005, which came into force on 1 October 2007, introduced a unified statutory approach to decision making on behalf of adults who lack capacity '“ in relation both to personal welfare and medical treatment, and to the management of their property and affairs. It contains a statutory presumption of capacity, a decision-specific approach to determining incapacity, and an overarching principle that decisions under the Act are to be made in an incapacitated person's best interests '“ with a set of statutory guidelines and non-statutory Code of Practice for all decision makers to follow in determining what those best interests are.

Hearings of the court are held in private, and the only anonymised judgments authorised for publication at the time of writing are Re P [2009] EWHC 163 (Ch), a landmark decision on statutory wills, and the Court of Protection's decision in Re S and S (cases 11475121 and 11475138; Lawtel AC0119248), an appeal from a district judge of the court about the appointment of a property and affairs deputy. There are, at the time of writing, no published decisions on objections to registration of a Lasting Power of Attorney ('LPA') or on the exercise of the court's power either to validate otherwise defective LPAs under sched.1, para.3(2) of the Act or to sever ineffective or invalidating provisions from an LPA under sched.1, para.11 (as at 1 October 2008 there had been no contested objections to registration lodged with the court: see Lasting Powers of Attorney: The First Twelve Months by Senior Judge HHJ Lush, ACTAPS journal, October 2008).

A novel application

The 'best interests' principle originated in pre-Act decisions about personal welfare and medical treatment, and is entirely novel in its application to property and affairs. The former Mental Health Acts gave the court authority to do everything necessary and expedient for maintenance of the incapacitated person and his family and administering his affairs, and for making provision for other persons or purposes for whom he might be expected to provide 'if he were not mentally disordered' (see s.95(1)(c) of the Mental Health Act 1983; s.102(1) of the Mental Health Act 1959). Since 1970 this included the power to direct the execution of a will for a person whom the court had reason to believe lacked testamentary capacity.

As is still the case, a statutory will could include 'any provision which could be made by a will executed by the patient if he were not mentally disordered' (sched.2, para.2 of the 2005 Act, s.96(1)(e) of the Mental Health Act 1983, s103(1)(dd) of the Mental Health Act 1959) and once executed had the same status and effect as an ordinary will. There was no other statutory guidance as to the content of such a will. In Re D(J) [1982] Ch 237, Megarry VC held that the court should 'seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight' and suggested five guiding principles:

(i) an assumption that the incapacitated person has a brief lucid interval in which the will is made;

(ii) during this interval the incapacitated person has full knowledge both of the past and of the future in which he relapses into incapacity;

(iii) the court must consider the actual, not a hypothetical incapacitated, person and assume that:

(iv) he has had the benefit of competent advice;

(v) he would take a broad brush 'rather than an accountant's pen' approach.

As noted by Lewison J in Re P this was an exercise in substituted judgment on behalf of the incapacitated person, based on a statutory counter-factual assumption as to what the person would do 'if he were not mentally disordered'. However it was not an unlimited subjective exercise. The court was to assume that the person is 'acting reasonably' and should not 'give effect to antipathies or affections ['¦] which are beyond reason'.

Many statutory will applications, like Re D(J), involve adults who have lost capacity as a result of either elderly dementia or of an accident or illness of more sudden onset. Such adults have as a rule previously led a full life, and might well have made an earlier will or wills when capable of doing so. It can be quite a straightforward task for the court to consider evidence of post-incapacity events of the type that might prompt a person with full capacity to review their existing will, and then draw inferences from an existing pattern of will-making or other evidence of a well-established attitude towards a conventional set of moral obligations.

Even where supervening circumstances were highly unusual the court appears to have had little difficulty in determining what the incapacitated person would have wished. In Re Davey [1981] 1 WLR 164, a marriage of highly doubtful consensual validity had taken place between a spinster aged 92 and a 48-year-old employee of the nursing home in which she lived, which revoked her previous will (made only a few weeks earlier) and gave the new spouse a substantial interest on intestacy. The official solicitor applied for and obtained an urgent statutory will replacing the pre-marriage will before the new wife's death a short time later.

A blank canvas

The task can be less straightforward where there is a doubt about how far pre-incapacity expressions of the person's wishes are genuine, because evidence suggests that a previous will was made at a time when the person lacked testamentary capacity or was subject to undue influence. In the case of an adult who had never had capacity, and whose life to date had effectively been a blank canvas as far as assumed testamentary wishes are concerned, it was established that 'the court must assume that [the patient] would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person and in this case there is nothing to displace such an assumption' (per Hoffmann J in Re C [1992] 1 FLR 51).

The case of Re D(J) formed the approach to statutory wills for the 25 years between 1982 and 2007, and even after the 2005 Act came into force it played a significant role in the court's decisions. Its guiding principles are specific, clear and readily intelligible to anyone who has ever been professionally involved with will-drafting. As Lewison J observed in Re P: '[re D(J)] contains a good deal of wisdom, and wisdom can always be applied.'

However, Re P makes it clear that Re D(J) can no longer be directly applied in the same fashion under the 2005 Act, which 'marks a radical change in the treatment of persons lacking capacity' (Re P [2009] EWHC 163 (Ch) at para.36, see also Re S and S at para.51). The Act does not define best interests, nor could it sensibly attempt to do so in a way that encompassed every decision that might be taken on behalf of an incapacitated person. The unified approach to decision making inevitably means that not every element in the process will be relevant to every kind of decision. There are obvious differences between decision making about welfare and medical treatment (particularly decisions about sexual contact and child bearing, which is the context in which the modern non-statutory best interests principle was largely developed) and decisions about property and affairs (particularly decisions about wills, which have no dispositive effect in the incapacitated person's lifetime).

'Balance sheet' approach

Before the Act, the courts adopted a 'balance sheet' approach to best interests as the basis for making a value judgment after weighing all relevant factors (see the discussion of Re A (Male Sterilisation) [2000] 1 FLR 549 at paras 23-24 of Re P and of the general philosophy of the 2005 Act at paras 37-39 of Re P). As Lewison J emphasises at paras. 21 and 39 of the judgment, the Act adopts a structured decision-making process 'quite different to that which applied under the former Mental Health Acts', and closer to the 'balance sheet' approach. The purpose of the process is to ascertain the best interests of the incapacitated person as he actually is, and not the assumed wishes of such a person in an artificial hypothetical set of circumstances.

A decision in an incapacitated person's best interests will not necessarily be one which simply gives effect to their ascertainable or inferred wishes, although it is tempting to assert that this should be the case with a will made in a legal system based on freedom of testation. Lewison J acknowledged that was 'part of the overall picture, and an important one', and (at para. 40) that 'P's expressed wishes should not be lightly overridden'. He commented with approval on the decision of Hazel Marshall QC in Re S and S on the role of the incapacitated person's wishes in the decision as to who should be appointed as their property and affairs deputy, in which she had said 'where P can and does express a wish or view which is not irrational [...] is not impractical [...] and is not irresponsible [...] then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this'.

Although Lewison J suggested that this passage might have slightly overstated the importance to be given to P's wishes, and that he would prefer not to speak in terms of presumptions, he agreed that such wishes must be given great weight (at para.41 of Re P). However, he also said (at para.44):

'But what will live on after P's death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done 'the right thing' by their will. In my judgment the decision maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death.'

The decision in Re P has decisively changed the forensic approach to a statutory will application (and by necessary implication, the approach to statutory gifts and lifetime settlements as well) but it remains to be seen whether or not there will be a radical shift in the outcome of many applications. The facts of Re P itself remain private, so it is not possible to consider this in the factual context of this case. However, Lewison J's analysis of the law fully illustrates the way in which in future the Court of Protection is likely to balance ascertainable wishes with other objective considerations in determining best interests. These objective considerations may be more clearly categorised than in some cases where the Re D(J) assumption of 'acting reasonably' would previously have been applied. And the court may feel able to give them more weight, particularly in cases where the facts show a failure on the part of the incapacitated person to act in his own best interests at a time when he was fully able to do so.