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Individual or Deputy: Who can make the decisions?

View profile for Jennifer McGuinness
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An interesting case regarding an agreement made by an individual who had a Court of Protection appointed Deputy in place.

Bashir v Bashir [2019] EWHC 1810 (Ch) (18 July 2019) concludes that even where 'P' makes a decision during a period where he has capacity that decision will be void if there is a Deputy in place.

The High Court (Master Clark) considered whether an individual could deal with their property in a period where they had temporary capacity in circumstances where a Deputy was in place to deal with property and affairs.

This is not a point that has previously considered against the backdrop of the Mental Capacity Act 2005. The Court therefore had to consider pre Mental Capacity Act case law (Re Beaney [1978] 1 W.L.R.770) which confirmed that once a patient had been placed under the Court of Protection’s jurisdiction, they could not make any valid lifetime disposition of their property, even in a lucid interval. As such, any dealings by 'P' in respect of property would be void regardless of whether 'P' had the capacity.

The decision is helpful to practitioners making it clear that transactions entered into by 'P' when there is a Deputy in place will be void (not voidable). The decision may however sit a little uncomfortably with some given the MCA’s 2005 approach to capacity (as confirmed in Dunhill v Burgin [2014]), which is firmly to judge in relation to the decision or activity in question and not globally. 

Does this decision therefore go against the grain of the MCA’s objectives? It is perhaps a moot point.