Key Facts
- •Two linked cases concerning whether Property and Affairs Deputies should inform protected parties (P) of the value of their civil litigation settlements.
- •The question of whether P has the capacity to understand the value of their funds and appreciate the vulnerability that wider knowledge of their assets may cause.
- •Lack of clear guidance from the Public Guardian or Court of Protection on this issue.
- •Responses from the Professional Deputies Forum indicated varied practices, with most seeking medical evidence of capacity before disclosure.
- •Relevant factors in best interests assessments included P's ability to resist disclosure, vulnerability to exploitation, likelihood of unrealistic demands, and potential disruption to care.
- •Review of three previous cases: EXB v FDZ, PBM v TGT, and DXW v PXL.
- •Cases involved decisions on capacity to decide whether to be informed of settlement amounts and best interests decisions concerning disclosure.
Legal Principles
Mental Capacity Act 2005 (MCA 2005) provides the statutory framework for assessing capacity.
MCA 2005, Sections 1-3
All practicable steps must be taken to facilitate decision-making before treating a person as lacking capacity.
MCA 2005, Section 1(3)
Presumption of capacity; burden of proof lies on the person asserting lack of capacity.
MCA 2005
Capacity assessments are decision-specific.
A Local Authority v JB [2022] AC 1322
Capacity test: understanding, retaining, using/weighing, and communicating information relevant to the decision, including reasonably foreseeable consequences.
MCA 2005, Section 1(3); Section 3(4)(a)
Vulnerability is not incapacity; incapacity is the inability to recognize vulnerability.
Judgement analysis
Outcomes
CK lacks capacity to decide whether to be informed of the settlement value but it is in her best interests to be told.
CK lacks insight into her own vulnerability despite understanding the value of the award and having a strong support system; informing her respects her autonomy.
NJ lacks capacity to decide whether to be informed of the settlement value, and it is not in her best interests to be told.
NJ has profound difficulties comprehending figures and understanding the value of money, lacks insight into her vulnerability to exploitation, and informing her would be difficult to manage.