Analysis
PBM sought to marry his fiancée and take charge of his property and affairs. TGT, his property and affairs deputy, obtained a caveat against the marriage under the Marriage Act 1949 and sought directions from the Court. It was eventually agreed that PBM had capacity to marry, to make a will and to enter into a prenuptial agreement but that he lacked capacity to manage his property and affairs. However, it was not agreed whether PBM should be told of the extent of his assets, or whether he had capacity to decide that question.
An expert psychiatrist gave evidence that PBM did have capacity to determine whether he should be told of all his assets. The deputy and local authority case manager both had concerns as to PBM’s financial vulnerability if he were informed. The official solicitor submitted that since PBM had capacity to enter into a prenuptial agreement, he must be given sufficient information in order to do so, including giving proper disclosure to his fiancée.
Separately, PBM complained that the care package provided by LA, his local authority, was excessive and unduly limiting. The Social Services and Wellbeing (Wales) Act 2014, s126(2) provides that:
‘If a local authority has reasonable cause to suspect that a person within its area … is an adult at risk, it must:;
(a) make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken … and, if so, what and by whom, and
(b) decide whether any such action should be taken.’
LA submitted it had fulfilled its duties to PBM under the Act.
The issues before the court were:
1) Did PBM have capacity to decide whether to be informed about the extent of his assets?
2) If PBM lacked capacity to decide that question, should he nevertheless be so informed?
3) Did PBM’s current care package fulfil the duties owed to him by his local authority pursuant to the Social Services and Wellbeing (Wales) Act 2014?
Held:
1) PBM did have capacity to decide whether to be informed about the extent of his assets. It was bordering on semantic absurdity to attempt to distinguish P’s capacity to decide whether he should ask for information from whether he should be told.
2) (obiter) Alternatively, if the question was one of best interests, then it was in PBM’s best interests to be informed as to his assets. It could not be said that wherever P has capacity to make a decision they are automatically entitled to any information belonging to them which they require to make that decision; although it was always desirable for the parties to a prenuptial agreement to give full disclosure of their assets, the lack of information did not make a valid agreement impossible. Nevertheless, PBM’s being informed would assist not only in making a prenuptial agreement but also a new will, and would dispel any misapprehensions as to his wealth. The continuing deputyship was a sufficient safeguard against financial abuse, and disclosure was in accordance with the Mental Capacity Act 2005 and the UN Convention of the Rights of Persons with Disabilities.
3) Although LA’s compliance with s126 of the 2014 Act could be more robust, PBM’s needs were being met by his current care package. A local authority’s assessment under the Act should be focussed on the outcomes the adult wishes to achieve in his or her daily life and the extent to which the provision of care and support contributes to those outcomes.
JUDGMENT FRANCIS J Publicity [1] This case concerns a number of applications in respect of PBM who is in his mid-twenties. PBM has been represented in these proceedings by his litigation friend the Official Solicitor who has instructed David Rees QC for this hearing. From the outset, PBM expressed considerable concern about the possibility of …Continue reading "PBM v TGT & anr [2019] WTLR 995"