Re H, on the application of F and M [2015] EWCOP 52

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Judge: Senior Judge Lush
Citation: [2015] EWCOP 52


This case concerned an application to appoint successive deputies for a young woman aged 26. Senior Judge Lush acknowledged that provisions 16(4)(b) and 19(5) of the Mental Capacity Act 2005 were contradictory as s16(4)(b) envisages that a deputyship appointment will be exercised for a limited duration. Whereas s19(5) facilitates that an appointment could last for decades. SJ Lush found that s16(4)(b) outweighs s19(5) as it is a principle to which the court must have regard when deciding whether it is in P’s best interests to appoint a deputy while s19(5) is merely a discretion conferred upon the Court.

H was born premature and still born. At age 5 she was diagnosed with autism and it was noted that her cognitive functioning and adaptive skills were low. H is an only child that resides in Cambridgeshire with her parents who both act as her carers and handle her affairs and personal welfare. Both H’s mother and father were applying for A, B and C to be successive deputies in the event of their death or ill health. In January 2015, Lush made an order refusing the successive appointment of deputies as he was of the view that it would be in H’s best interests for the Court to defer any succession until after the death of her parents as it the provision would be made so far in advance.

Section1(5) of the Mental Capacity Act 2005 outlines the need for decisions to be made in P’s best interests, though the Act doesn’t define what is to be perceived as ‘best interests’. Both s16(4) and the authority of MK v JK and others [2013] EWHC 4334 (COP) confirm that the decision of the court is preferred to the appointment of a deputy. Despite this SJ Lush was satisfied that deputyship was both necessary and preferable to the court making several ongoing decisions about H’s affairs and personal welfare. Although in this case the balance sheet had disadvantages that much outweighed the advantages SJ Lush granted a successive deputyship to provide H’s parents with peace of mind.