L v NG

This is an application by L to be appointed with her sons as the deputies for property and affairs of her brother NG.

NG is aged 57. He has suffered from paranoid schizophrenia for many years and on many occasions he has had been admitted to hospital under the Mental Health Act 1983.

His current estate mainly consists of a home worth around £300,000 (bought with the help of his parents), income from a discretionary trust and various welfare benefits. The Applicant states that in 2007 and at the time of her application he has attempted to dispose of his home in ways which indicate that he is not able to manage his property and finances.

The medical report in support of the application states that NG ‘does not understand the necessary processes required to manage his finances’ and ‘lacks insight’ into the impact of his illness on his functioning.

NG objects to the application and has been supported in his objection by a brother and a previous social worker. He asserts that he does not need a deputy and also that he does not wish his sister to be his deputy.

There is no evidence rebutting the presumption that NG lacks litigation capacity and he represented himself at the hearing, accompanied by his CPN and a friend.

Section 16(4) of the Act provides that when deciding whether it is in the relevant person’s interests to appoint a deputy, the court must have regard to section 4 (best interests) and the principle that a decision by the court is to be preferred to the appointment of a deputy to make a decision.

The fact that a person generally lacks capacity to manage their property and affairs does not automatically mean that it is in their best interests to appoint a deputy to manage their property and affairs.

The best interests requirements of section 4 require the court to consider the wishes, feelings, beliefs and values of the person concerned.

One of the principles of the Mental Capacity Act 2005 is that before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

On the evidence a deputyship order is either unnecessary or not in NG’s best interests provided that a restriction is entered in the Land Registry requiring the court to authorise any dealings with his home.

Any risks in respect of NG’s other property and financial affairs which would be minimised by the appointment of a deputy are outweighed by the effect of such an order on his self-esteem, the resulting interference with his autonomy and the impact on family relationships.

The sole purpose of the restriction is to act as a light touch safeguard. The court will only not authorise a proposed transaction if NG is being taken advantage of by a third party during a period of illness or is acting in a way that he will be likely to regret on recovering from a period of illness.

If NG wishes to move, or to deal with the property in some other way, he should send in Form COP9 to the court and a covering letter explaining what he wishes to do. These documents should be marked for the attention of District Judge Eldergill so that he is not inconvenienced by any delay.

The application for the appointment of a deputy for property and affairs is dismissed.

The Applicant is authorised to enter the following restriction at the Land Registry to title of the property: ‘Under an order of the Court of Protection made on 11 May 2015 (Case No. 12523141) no disposition by the proprietor of the registered estate is to be registered except under a further order of the Court.’