Martyn Frost sums up the current position on MCA 2005 v Banks v Goodfellow ‘The test from Banks v Goodfellow is, after all, a common law test and as such capable of modification and development by judges as is appropriate to modern circumstances and modern needs.’ It is perhaps a sad reflection that almost ten …
Continue reading "Capacity: The last round?"
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Huw Miles looks at issues arising and procedure when a client may lack capacity to conduct financial proceedings ‘Capacity is both specific to every particular issue and every instant in time: it can even be person specific, so that what seems a simple concept can quickly develop into something else entirely.’ Liberty is a fundamental …
Continue reading "Capacity: Hard decisions"
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In the conclusion to a two-part analysis, Debbie Stringer discusses the more paternalistic approach that may be taken by the courts when considering a child’s capacity ‘Doctors and hospitals do not have, nor can they obtain, parental responsibility – it is for the court to determine whether or not treatment, and what sort of treatment, …
Continue reading "Capacity: Open justice?"
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Wills & Trusts Law Reports | October 2014 #143The deceased, June Fairbrother, (D), a retired policewoman, made a will in March 1998 leaving legacies to friends and family, the 3rd to 14th defendants ,the executors and legatees and the residue to the 15th to 21st defendants, animal charities (the charities). In June 2007 D’s nephew, Mr King, the claimant (C) had a conversation with her. She was increasingly elderly and frightened of going into a home, and he agreed to move in with her to look after her. He had spent some time in prison as a result of an offence under the Companies Act and was living in the property of a busi...
In the first of a two-part analysis, Debbie Stringer examines how the courts approach Gillick competence in relation to a child’s capacity ‘Where a court has to make a decision where the rights of the child and the rights of the parents conflict, the child’s rights must be the paramount consideration.’ In two recent judgments …
Continue reading "Capacity: Maturity test"
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Jonathan Grogan sets out the current position on gifts from deputies and attorneys to themselves ‘While an attorney who is related to or connected with a person who lacks mental capacity is allowed to make gifts to themselves on customary occasions, a deputy would always need to seek Court of Protection approval for any gifts …
Continue reading "Capacity: Size matters"
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Jim Tindal summarises mental capacity, CPR 21 and Dunhill v Burgin [2014] ‘The issue at the heart of Dunhill was: what “claim” must the claimant have capacity to commence? The claim which it was wrongly believed at the time the claimant had, or the (much bigger) claim they in fact had unknown to anyone at …
Continue reading "Capacity: When does a settlement settle nothing?"
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Deirdre Goodwin provides analysis and considers the effect of a finding of incapacity to conduct proceedings upon the status of settlements not approved under CPR r21 ‘The re-assertion of the principle that an apparently fully informed and properly advised settlement will be treated as void if a claimant is retrospectively considered to be a protected …
Continue reading "Capacity: Test of capacity to conduct proceedings"
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Williams v Wilmot indicates key factors the court will take into account when considering lack of capacity. Sharon Kenchington explains ‘A token medical report from a doctor who has only met the deceased in order to produce a report on their capacity is unlikely to be persuasive if there is detailed evidence to the contrary …
Continue reading "Capacity: Quality of evidence"
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Wills & Trusts Law Reports | September 2013 #132The claimant sought probate of a will of Dr Cecil Monk (the deceased) dated 5 December 2003 by which the deceased left his entire estate to the claimant. The claimant also sought, in so far as it was necessary, an order that the deceased’s later will of 19 January 2007 be pronounced against on grounds of a lack of testamentary capacity and/or a lack of knowledge and approval.
The defendant, who did not appear and was not represented, was formerly engaged in caring for the deceased. He was an employee of a care agency to whom the relevant local authority had contracted out the care...
