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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> D v R (The Deputy of S) & Anor [2010] EWCOP 2405 (04 October 2010) URL: https://www.bailii.org/ew/cases/EWCOP/2010/2405.html Cite as: [2010] EWCOP 2405, [2010] EWHC 2405 (COP) |
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In the matter of S
And in the matter of the Mental Capacity
Act 2005
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
D |
Applicant |
|
- and - |
||
(1) R (the Deputy of S) (2) S |
Respondents |
____________________
Mr Paul Marshall (instructed by Judkins Solicitors) for the First Respondent
Hearing dates: 13, 14 and 16 July 2010
____________________
Crown Copyright ©
Mr Justice Henderson:
Introduction
"Whether (1) [Mr S] should be consulted in the decision to commence proceedings in the Chancery Division against the Applicant, in which the Deputy seeks to set aside gifts by [Mr S], (2) the Deputy, [R], ought to have consulted [Mr S] in the decision to commence the said proceedings in the Chancery Division, (3) a Visitor or Doctor should be appointed to meet [Mr S] and ascertain whether (a) he hascapacity
to decide whether the proceedings should be pursued or compromised and if so on what terms and/or (b) his views ought to be taken into account in deciding whether to pursue or compromise the same, and (c) to assist [Mr S] in making any decision whether to pursue or compromise the said proceedings, and (4) for the court to decide if necessary whether the said proceedings should be pursued or compromised or what further steps should be taken in respect of the decision to pursue the said proceedings."
As matters have developed, the relief sought by Mrs D has narrowed somewhat in scope, and the only question which I am asked to decide at this stage is the fundamental question whether Mr S has capacity
to decide whether the Chancery proceedings should be continued.
"general authority to take decisions that [Mr S] is unable to take in relation to his entire estate and to exercise the same powers of management and investment as he has as the beneficial owner."
Paragraph 2(b) directed the deputy to apply the principles set out in section 1 of the Mental Capacity
Act 2005, and to have regard to the guidance in the Code of Practice to the Act.
Background facts
Date of payment | Amount paid |
19 January 2006 | £3,000.00 |
21 February 2006 | £13,000.00 |
25 March 2006 | £30,000.00 |
25 March 2006 | £16,871.96 |
6 April 2006 | £12,800.00 |
24 April 2006 | £436.96 |
11 May 2006 | £7,043.55 |
12 May 2006 | £61,837.48 |
24 May 2006 | £42,972.91 |
18 August 2006 | £301,941.00 |
13 November 2006 | £28,102.00 |
25 January 2007 | £5,000.00 |
1 March 2007 | £635.70 |
13 March 2007 | £25,000.00 |
11 March 2007 | £500.00 |
£549,141.56 |
"Over the last 7 years my father has not been in touch with me. Prior to that contact was sporadic. My birthday, Easter and Xmas cards received no response, nor phone calls or knocking on the door.
In April 2007 [Mrs D] got in touch with me to say she was a friend of my father's and had been caring for him since his stroke. He now wished to get in touch with us. Since then I have been in regular contact with him. I was shocked at the mess he was living in … My concern grew when my father (and his bank statements) disclosed that he had given her £500,000. His care needs are increasing and will continue to do so. His finances need to be protected so that he can pay for the best care possible and not be open to financial abuse. [Mrs D] has enduring power of attorney. My father's will is made out to her and I am very concerned about her influence over him and her motives."
"I have decided to appoint [R] as receiver, rather than a panel receiver, for the following reasons.
The appointment of a panel receiver would mean introducing a third party into these proceedings, which is not necessarily a satisfactory outcome, given the time and energy that [R] has already committed to this matter.
Although the office of receiver is, by its definition, concerned with property and financial matters and involves the prudent control of the property and assets of the patient, in the nature of things a receiver is likely to become involved in decisions which affect the patient's quality of life. A knowledge of the person is involved, and a devotion to his interests may contribute to that quality. It is likely to be more readily secured by the appointment of a family member than by the appointment of a panel receiver.
I believe that [R] is likely to be more motivated than a panel receiver to carry out an investigation into [Mrs D's] dealings.
I am not convinced that any hostility between [R] and [Mrs D] will impact adversely on the proper stewardship of [Mr S's] finances.
Costs are a major consideration. In a case of this kind, with the investigation that needs to be carried out, I would be surprised if a panel receiver would charge less than £15,000 a year. This would be entirely disproportionate, given that [Mr S's] estate, excluding the value of his house and any sums that may be recoverable from [Mrs D], amounts to only £80,000. By contrast, [R] will act gratuitously, and will thereby manage his assets more economically.
It has been suggested that [R's] appointment would be contrary to her father's wishes. This is an extremely difficult and sensitive issue. Of course, his wishes and feelings are of considerable importance, and I would not dream of overriding them unless I considered it was absolutely necessary to do so. His wish is that [Mrs D] should manage his affairs, but, for the reasons stated above, that would be inappropriate and would not be in his best interests. When enacting theMental Capacity
Act 2005, which comes fully into force on 1 October 2007, Parliament required decision makers, including the court, to act in an incapacitated person's best interests, rather than engage in an act of pure substituted judgment. This means that the patient's wishes do not automatically determine the outcome."
The Chancery proceedings
"14. In or about 2004 [Mr S] suffered a stroke following which he became progressively incapacitated and, in particular, suffered from hemiparesis and restricted mobility. He was blind in one eye and partially blind in the other by reason of a cataract. He suffered from type II diabetes mellitus and high blood pressure. In the premises by 2005 [Mr S] was elderly, living alone in circumstances of substantial isolation, suffering from impaired mobility, and was partially sighted. [Mr S] during this period had a tendency to drink alcohol to excess. As a consequence [Mr S] was vulnerable.
15. In or about mid-2005 Sayer Moore & Co arranged for [Mr S], at his request, to attend doctors' and opticians' appointments aided and accompanied by [Mrs D].
16. [Mrs D] befriended [Mr S]. She wrote letters on his behalf and started to visit him at his home weekly for a period of about 2 hours. In October 2005 [Mrs D] wrote to [a local doctor] offering to bring [Mr S] for a blood test. She requested that [Mr S] be attended at his home in future for the purpose of diabetes tests commenting: "He is very frightened to leave the house because he can hardly see and walking is very painful. I am certain he would not bother to attend if he was told to come under his own steam by taxi."
17. In the circumstances [Mrs D] became effectively the sole companion of and visitor to [Mr S] in circumstances in which, by 2005/2006, he had become isolated, vulnerable and dependent and unable to adequately care for himself.
18. By reason of the aforesaid circumstances a relationship arose between [Mr S] and [Mrs D] characterised by dependence of [Mr S] upon [Mrs D], disproportionate gratitude for her companionship and help, and trust and confidence reposed by him in her, including in connection with his financial affairs. By reason of matters aforesaid [Mrs D] acquired influence over [Mr S] without persuasion or other analogous overt acts by her."
"We have been consulted by [Mrs D] … in connection with her concerns regarding a gift you wish to make to her as she feels, in the best interests of everyone concerned, that this gift is recorded in some way.
We have advised her that there is no reason why she cannot accept a gift from you upon whatever terms you wish or do not wish to impose and such a gift can very simply be recorded by a short Memorandum …
We also advised her that as we act for her we do not owe any responsibility to you other than to advise you that if you have any doubts at all or there is any reason why anyone else should raise doubts about the correctness of the gift, you should seek independent legal advise (sic)."
It is averred that this limited advice was ineffective to protect against the circumstances that might vitiate the proposed gift.
"I am writing as I am concerned that you have not replied to my earlier letter. I am now partially sighted and wish to simplify my affairs by closing all my accounts and holdings with you and selling my investments. I did write to you by hand but admittedly my writing is not what it was due to my sight problems.
Please can you send me forms so that all my investments can be liquidated.
I look forward to hearing from you.
I enclose a copy of my earlier letter for your reference. You may telephone me on the above number if any information is unclear."
It is alleged, and admitted, that Mr S did not at the material time own a computer word-processor or printer, and that Mrs D typed this letter and later placed it before Mr S for him to sign, which he did.
"5. [Mr S] and [Mrs D] first met in April 2005, when [she] was asked by Mr Sayer to accompany [Mr S] to an appointment at his optician, and thereafter a friendship arose between them, with [Mr S] inviting [her] to visit him at his home on a weekly basis, and on some of those occasions [her] children would also visit [Mr S].
6. At all material times, [Mr S] was an individual with a strong personality, who made all decisions concerning him and his affairs, [and] who enjoyed a degree of isolation.
7. [Mrs D] found [Mr S] to be a polite, dignified, intelligent, well read and articulate individual. They shared many interests, in listening to Radio 4, reading the Telegraph newspaper, religions, British politics, art, literature and history, and aspects of the law, together with other matters.
8. [Mr S] expressed himself in somewhat flowery language.
9. [Mr S] took an interest in [Mrs D] and her children …
…
13. As far as [Mrs D] is aware, [Mr S] considered her to be a good friend, whose company he greatly enjoyed."
"(1) [Mr S] alone had control of the cheque book for his bank account.
(2) [He] alone paid all of the outgoings for his home and his living expenses.
(3) [He] did not ask [Mrs D] to provide him with any assistance in managing his financial affairs, nor did [she] provide him with any assistance in managing his financial affairs.
(4) [He] alone decided to make the various gifts to [Mrs D] that are the subject matter of these proceedings.
(5) [He] alone decided on the amounts of the various cheques made out in favour of [Mrs D] …
(6) [He] wrote out all the details on most of the various cheques made out in favour of [Mrs D] …
(7) [He] wrote out the cheque dated 14 August 2006 in favour of [Mrs D] in the amount of £301,941. A few days later, an employee of [his] bank, Lloyds TSB Plc, called [him] at home, while [Mrs D] was not present, and enquired whether in fact he wanted to pay this sum to [her] and [he] confirmed that he did. Thereafter, [his] bank cleared the cheque and marked it "Special Paid".
(8) [He] was aware that at some point he might have to move into a home, he was aware from the news of the cost of staying at a home, which he understood to be about £500 to £600 a week.
(9) [He] was aware that his pensions provided him with an income of £2,800 [per month] or thereabouts.
(10) [He] considered that his pensions provided him with a sufficient income for his maintenance and that he could afford to make the gifts to [Mrs D] …
(11) [He] was concerned about the financial position of [Mrs D], and he wanted to provide her with financial assistance.
(12) [He] and [Mrs D] discussed whether [he] could afford to make the gifts …
(13) [He] asked [Mrs D] about the details of her financial affairs, and knew that she owned her home, the amount of her mortgage, and that she had no pension arrangements or other investments.
(14) [He] was aware that the gifts were of significant sums and would leave him with only his pensions.
(15) [He] was aware that by making the gifts then during his lifetime, the amounts would not be subject to Inheritance Tax if he were to survive the making of the gifts by 7 years, and in late 2006 he informed her that that was one of his reasons for deciding to make the gifts.
(16) …
(17) [Mrs D] felt uncomfortable about accepting these significant gifts from [Mr S], being gifts from a friend of substantial amounts. [She] sought to dissuade [him] from making the gifts to her on a number of occasions but he would not waver from his desire and decision to make the gifts.
(18) …
(19) [Mrs D] insisted that a solicitor be consulted in respect of a gift of £13,000 …"
The Law
"1. The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to havecapacity
unless it is established that he lacks
capacity
.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lackscapacity
must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
2. People who lackcapacity
(1) For the purposes of this Act, a person lackscapacity
in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack ofcapacity
cannot be established merely by reference to –
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about hiscapacity
.
(4) In proceedings under this Act or any other enactment, any question whether a person lackscapacity
within the meaning of this Act must be decided on the balance of probabilities.
…
3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) touse
or
weigh
that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of –
(a) deciding one way or another, or
(b) failing to make the decision."
"4. Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of –
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider –
(a) whether it is likely that the person will at some time havecapacity
in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) …
(6) He must consider, so far as is reasonably ascertainable –
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he hadcapacity
),
(b) the beliefs and values that would be likely to influence his decision if he hadcapacity
, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of –
…
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8) …
(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirement of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10) …
(11) "Relevant circumstances" are those –
(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant."
"36. The 2005 Act marks a radical change in the treatment of persons lackingcapacity
. First it brings together under one common framework the former powers of the court to make decisions both about a person's property and his personal welfare. It thus applies to all manner of decisions from the relatively minor to the most important. Second, it applies not only to decisions that the court might make, but also to decisions that others (carers, doctors, deputies) might make. Third, the test of incapacity is finely calibrated. The Act recognises that the test of
capacity
is issue specific. A person ("P") may well have
capacity
in relation to some matters (e.g. what to wear or what to eat), while lacking
capacity
as regards others (e.g. what to do with his savings or whether to undergo an operation). A person's
capacity
may also vary from time to time. At this point I should comment on one aspect of the statutory test of incapacity. One of the ingredients in the test is to ask whether P is able to "
use
or
weigh
" information in making a decision: section 3(1)(c). In their report the Law Commission explained the thinking behind this: para 3.17. They said:
"There are cases where the person concerned can understand information but where the effects of amental
disability prevent him or her from using that information in the decision-making process. We explained in Consultation Paper No. 128 that certain compulsive conditions cause people who are quite able to absorb information to arrive, inevitably, at decisions which are unconnected to the information or their understanding of it. An example is the anorexic who always decides not to eat … We originally suggested that such cases could be described as cases where incapacity resulted from inability to make a true choice. Common to all these cases is the fact that the person's eventual decision is divorced from his or her ability to understand the relevant information. Emphasising that the person must be able to
use
the information which he or she has successfully understood in the decision-making process deflects the complications of asking whether a person needs to "appreciate" information as well as understand it. A decision based on compulsion, the overpowering will of a third party or any other inability to act on relevant information as a result of
mental
disability is not a decision made by a person with decision-making
capacity
."
37. Fourth, the overarching principle is that any decision made on behalf of P must be made in P's best interests. This is not (necessarily) the same as enquiring what P would have decided if he or she had hadcapacity
. As the explanatory notes to the
Mental Capacity
Bill explained:
"Best interests is not a test of "substituted judgment" (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person's best interests"."
The nature of the relevant decision
(a) the nature and extent of the relationship of trust and confidence arguably reposed by him in the donee;
(b) the extent to which it may be said that the gifts cannot readily be accounted for by the ordinary motives of ordinary people in such a relationship; and
(c) the nature of the evidential burden resting on the donee to rebut any presumption of undue influence (traditionally described as proof that the gifts were made only after full, free and informed thought about their nature and consequences: see Hammond v Osborn [2002] EWCA Civ 885, [2002] WTLR 1125, at paragraphs [26] to [27] per Sir Martin Nourse).
The expert evidence: (1) The written reports
(a) The report of Dr Robert Powell dated 16 July 2007
"When I asked him why I had been asked to come, he prefaced his response with a description of [Mrs D] as "An embodiment of compassion, kindness and courtesy". He went on to say, "My daughter thinks I'm out of my mind and I need to be seen by a psychiatrist because I have given my money away. This whole trouble started with money and I am now so tired of it that they can have it all. I'm a very lonely man – I don't have friends. I am not very sociable and I like to keep myself to myself".
…
He then informed me that a month ago he decided to sell his remaining shares because "I felt I was getting old and I should reduce my holdings and savings. I gave some to [Mrs D] – I must tell you, she has been very kind to me: her kindness, magnanimity, generosity has been very great so I gave her some money". I enquired how much that would have been and he said it was roughly £300 - £500, then revised this to say it was more like £1,000 and finally settled on around £150,000 to £200,000."
"… that he had been living alone at this address since 1982 and that he has always done his own housework. He went on, "But I have a friend, [Mrs D]. She comes three to four times a week. She helps me with the housework – she has been a tower of strength for me and I can never repay my debt to her. She has been an embodiment of compassion and kindness. She dresses me and undresses me and to show my gratitude I gave her some money - £5,000 – no - £50,000 – and my family were very displeased and they took the view that she exerted undue influence." (I asked which members of his family had expressed such a view and he told me that it was his daughters). He went on, "But nothing could be further from the truth – in fact, every time that I gave her money she said, "No, give it to your children, give it to your children". I had to force the money on her. You see, I get very lonely and [Mrs D] very kindly offered to accommodate me – [Mrs D] offered that I come and live with her and I was looking forward to it. But because of all these accounts of dishonesty she is fed up".
Mr S went on to state, clearly and without prompting, that he would very much like to live with Mrs D because he would have companionship and friendship; and he repeated this view when Dr Powell again asked him where he would prefer to live in the presence of his two daughters. They found this hard to understand, and remonstrated with their father, to which he replied that Mrs D would have him to live with her because of "personal chemistry, compassion and kindness".
"On both occasions that I visited, I saw him both sitting out and in bed. He was alert, appropriately behaved and extremely polite. His speech was spontaneous, accented, very deliberate, slow with a rather old fashioned style of usage, and of normal volume and syntax. There was no disorder of the form of his thought. He made good eye contact and we enjoyed a good rapport. … His affect was rather depressed. There seemed to be no psychotic or obsessive-compulsive features.
On cognitive testing, he showed marked impairment of long and short-term recall and was disoriented for times. He had difficulty with attention and concentration, scoring only 2/5 on spelling WORLD backwards and he had difficulty naming unusual items, such as the clasp on my watch. He had difficulty repeating a short phrase and showed ideational and constructional dyspraxia … There was evidence of perseveration (such as in repeatedly using 1930 as his siblings' dates of birth). On the MiniMental
State Examination on 21 May, he scored 20/30 and on the Clock Drawing Test, 1/5. On 1 June 2007 these scores were 17/30 and 1/5 respectively."
(b) The report of Dr O V Briscoe dated 20 July 2007
"[Mr S] is showing signs of some cognitive decline, though not to the extent of not knowing his whereabouts or the approximate date. He is not capable of some more sophisticatedmental
activities such as number reversal or subtraction or word reversal. He is clear about where he wants to live, what provisions are to be made for his funeral, and whether relatives should be allowed to attend to his body after death. He does not appear confused in ordinary conversation about the subjects which matter to him.
To be set against that he does not appear to know the details of his financial affairs, he cannot read bank statements, cheques, or other statements about his finances, and [Mrs D] reads them to him. One is seeing him now at his best after rehabilitation at Hammersmith Hospital and Charing Cross Hospital. His present condition would not be nearly so good were he to be living alone in a bungalow. He is limited in mobility. His blindness would be a serious handicap if he tried to cook or if he were alone at night when he could easily become disorientated. He has fallen in [Mrs D's] house. I do not think one could separate [his]mental
ability from his physical ability. He is simply an elderly, frail, vulnerable person with a deteriorating
mental
state. He would not be able to read documents or know what he was signing. Unless bills or letters were read to him he would not know what they were. So overall I think that for a combination of physical and
mental
incapacity he is unable to manage his own affairs now, both financial and others …
[Mr S] does not appear to know the extent of his affairs, or his regular income. He told me he has sold all his assets but I am unclear whether this is true. He would however be capable of understanding the extent of his assets if they were explained to him at the time of making a Will now. He has been punctilious in the past about finances, advising [R] about her finances and he would understand his own once explained. He knows that he had dependants, [R and A] and perhaps one or more of his brothers, but he does not want to make a Will in their favour, apparently possibly he is still angry at what he thinks was their rejection of him at a time of need. I think it is likely therefore that if he were to make another Will now it would be much the same as the Will he made a year ago, and that it would be in favour of [Mrs D] … I would say that he had testamentarycapacity
now."
(c) The report of Dr Marilyn Cook dated 16 March 2008 and her statement of 13 April 2008
"[Mr S] was sitting upright in his bed and was fully co-operative with my interview and remained mostly focussed throughout the hour long assessment. Significantly he was aware that as he put it "I have a tendency to forget". He also expressed his understandable frustration that he cannot walk unaided and can no longer read his books which were his main expenditure before his health failed. He told me that although he accepted his current situation, he prayed and yearned for a quick and painless death every day his head hit the pillow. On formal cognitive testing it was not possible to administer the Mini-Mental
State Examination in full on account of his visual impairments and motor disabilities. However, he was fully orientated in time and place giving his correct post-code. He recalled my name after 15 and 30 minutes along with 2 out of 3 other new words. Thus his short-term recall is still functional. He was conversant with current world events through listening to Radio 4 he claimed but he could not give me the Christian name of the Prime Minister but immediately recognised it from 3 given possibilities. This pattern of cognitive impairment is in keeping with the original diagnosis of Multi-Infarct Dementia and appears not to have progressed beyond the moderate range of severity as yet.
…
He was equally definite in stating that the "gifts" to [Mrs D] must remain with her because they were given to reward her compassion and kindness. However, when I specifically enquired what value the gifts had been, he estimated around ten thousand pounds maybe a few thousand more or less. He appeared shocked when I informed him that he had "gifted" over half a million pounds to her. He acknowledged that he was indeed distressed by talking about the money and apologised to me saying "I cannot get my head round it" …"
"8. [Mr S] did not appear to realise that he had no savings at all left although he did appreciate he had given money to [Mrs D]. [He] appeared to consider this was not a problem because he had pensions in excess of £1,000 each month. Mr Judkins and myself then asked him about how he would fund his future care needs now that he didn't have any savings and if it was the position (as was very likely) that there would be a monthly shortfall in his income if he was to remain living at the bungalow and/or indeed go into a nursing home. He then said that [R] would take care of this because she was his deputy. We explained that she would but if there was not enough money for her to pay for these needs (because he had given his money to [Mrs D]) she would not be able to. [Mr S] considered this point very carefully and then said that he would want [R] to "negotiate" with [Mrs D] to pay them."
(d) Professor Howard's first report dated 8 April 2008
"In summary, I found that [Mr S] was moderately cognitively impaired and that difficulties with his memory dominated the picture of deficit while his language and reasoning abilities were relatively unimpaired. Having read some of the papers in this case, on meeting him I was surprised by his eloquence and apparent grasp of the issues involved. In my opinion (a)[Mr S] currently has testamentarycapacity
and had this in February 2006, (b) he had
capacity
to make the gifts of money to [Mrs D] in 2006 and (c) [he] has
capacity
to make decisions regarding who should be allowed to come and visit him at his home."
"I can understand the Fijians' grievance. No one relishes the idea of outsiders coming in and being more prosperous and successful than the natives."
Mr S described his career in the judicial department of the Fijian Civil Service, and his arrival in the UK in 1962 when he joined the War Office (as it then was) as a clerical officer. He described his marriage, its subsequent breakdown and his estrangement from his daughters. He could not recall any particular incident that had led to the estrangement, and said:
"With the passage of time the relationship became cool and I made no attempt to rekindle it. I'm a bit of a fatalist you see. A strength that I have is my acceptance of things – good, bad or indifferent."
"I asked [Mr S] how he would describe [Mrs D] and he replied:
"As a very kind, compassionate, caring human being."
He told me that he had met her when she had been working for a firm of solicitors called Sayer Moore. When I asked him what he thought about the concerns that had been expressed about their friendship he said:
"I reject this with all the contempt and vehemence I can. I am 75 and not a child to be manipulated. Poor Jane is blamed by my daughter unfairly that she has abused my trust. She did nothing of the sort. I was so overwhelmed by her kindness, that to show my appreciation and gratitude I gave her a small sum of money".
I suggested to [Mr S] that he had actually given [Mrs D] a considerable sum of money and he responded:
"What price can one put on compassion and kindness?"
When I asked him if he could remember approximately how much money he had given to [Mrs D] he was unable to do so. When I told him that my understanding was that he had given her something in excess of £500,000 he said:
"That does not surprise me."
I asked him that, if he had this £500,000 in his bank account now and knew that he was in contact with his daughters, would he still wish to gift this to [Mrs D]. He responded:
"Undeniably, sir. Without any doubt. The money I gave Jane was not as a result of a memory loss or a manipulation. It was a large sum of money, I accept that, but I haven't the slightest doubt in my mind that what I did was right. It hurts me that aspersions are cast at Jane that she manipulated me."
I asked [Mr S] if he had expected or hoped to gain anything from [Mrs D] in return for the gifts. Had he, for example, expected that she would have him to live with her or would feel obligated so that she would continue to visit him? He responded:
"I made no conditions as to what she should do. I told her "You must secure your future by arranging pensions – old age is not far off for any of us"."
He recalled advising her to buy a property to rent out as a potential source of income."
"When I asked if he wanted to leave anything to [Mrs D] he replied:
"With the benefit of hindsight I think I have been more than generous to Jane and that this was at the expense of my daughters. I now propose to put that right."
I pointed out to [Mr S] that, as things would stand with the proposed Will and given the amounts of money that we had just discussed in relation to the value of his house and the size of the gifts he had made to [Mrs D], [Mrs D] would have received more than both of his daughters put together. I suggested to [Mr S] that some people might say that blood was thicker than water and consider that it was unfair for a friend to receive more from him than his daughters. His response to this was:
"I am happy with these dispositions. Jane has been good to me, more than I can repay. In answer to blood is thicker than water I would say that there was a long period when I was not in contact with my daughters and was not aware of their existence. This changes everything. If there had not been a rupture in our relationship it would have been different."
When I asked [Mr S] what he would want to do if he was making his Will not having already given the money to [Mrs D] and knowing that his house was worth £300,000. His answer was:
"The same. I would give Jane £500,000 and the rest between the daughters.""
"In my opinion [Mr S] had testamentarycapacity
when I examined him. He understood the nature and effects of a Will and could recall the contents of the existing Will that he now wants to replace. He could recall that his house and his pension contributed the bulk of his estate. Although he could not recall the market value of his bungalow, once he had been reminded of this he was able to
weigh
the figure against the amount of money that he had already given to [Mrs D] and come to an understandable decision that he could logically defend about the relative amounts of money that he had already, or would want to give to [Mrs D] and his two daughters. He was able to recall the names and dates of birth of his daughters and could recall his grandchildren and that he had surviving siblings in Fiji. He was able to give cogent reasons as to why he now wants to make his daughters sole beneficiaries of his Will and not make any further dispositions to [Mrs D]."
(e) Professor Howard's second report dated 10 June 2009
"We now wish to make an application to the Court of Protection to decide whether [Mr S] should have been consulted in the decision to commence [the Chancery proceedings] and asking the Court of Protection to appoint a visitor to meet [Mr S] and ascertain whether he hascapacity
to decide whether the proceedings should be pursued or compromised and, if so, on what terms. We believe that the Deputy did not discuss the matter with [Mr S] before deciding to issue the [Chancery proceedings] on his behalf.
I am attaching a copy of the Witness Statement of [Mrs D] which sets out the basis for her application.
When issuing the application the Court of Protection require form COP3, "Assessment ofCapacity
" to be completed, a copy of this form is attached.
Would you please therefore let me know whether you would be able to see [Mr S] at short notice in order for you then to complete the form COP3 and to provide us with a short report on whether in your view [Mr S] has thecapacity
to decide whether the Chancery proceedings should have been issued in January … and to express his views about the matter."
"He has a very severe impairment of his recent memory most likely consequent upon heavy alcohol consumption in the past.
In my opinion he has retainedcapacity
to make decisions about whether or not [the Chancery proceedings] should have been issued … as well as on the further conduct of the proceedings including whether or not they should be continued.
He has a good understanding of the functions of the Court of Protection and the Chancery Division of the High Court. With prompting he is able to recall and understand and explain the gifts made to [Mrs D] in 2006, his motives for making these gifts, the dispute between his daughter [R] and [Mrs D] that has arisen as a consequence and the relative magnitude of these gifts and the assets that he is leaving his daughters through his Will.
Although he is unable to recall unaided the amount of money involved in the 2006 gifts and the precise nature of the dispute that has arisen between his daughter [R] and [Mrs D], he clearly recognises the facts around these areas when they are given to him and is able to retain them for some minutes during a conversation.
Once he has been reminded of the facts of the situation: the nature and extent of the gifts made to [Mrs D], the reaction of his daughter [R], the allegations made about [Mrs D] and the current approach to the [Chancery proceedings] he is very obviously able toweigh
this information and
use
it to make a decision about whether or not he wants the Chancery Division case to proceed. His reasoning and abstract thinking skills are well preserved and he has a detailed knowledge and understanding of the jurisdiction and workings of the Court of Protection and Chancery Division.
Despite his marked memory problems, [Mr S] is a highly articulate and I would even say eloquent man. His ability to communicate his decisions is excellent.
…
During the course of my assessment [Mr S] expressed in the most forceful terms available to him his objection to the issuing of the Chancery proceedings."
"When I asked [Mr S] if he could tell me why he thought that I had been asked to make an assessment of him he told me:
"It has something to do with [R]. She has made a complaint about Jane and I am very hurt by this. It is heartbreaking to me sir, I find it pathetic".
He was initially unable to recall that the dispute was about the gifts of money that he had made to [Mrs D] but when I reminded him of this in the most general terms he seemed to immediately recognise the information and said:
"[R] creates a fuss about this money business. She thinks that I gave Jane a lot of money and she wants to recover the money. She [Mrs D] didn't ask for the money. I gave whatever I did of my own free will with no pressure or coercion. The wearer knows where the shoe pinches – that means I know of the courtesy and support I have received from Jane is unquantifiable. I would fight against this tooth and nail in the Court against [R]. The money is mine. The prerogative of what I do with it is mine. Nobody has the right to tell me to give X amount to so and so."
I asked [Mr S] if he could tell me the difference between the Court of Protection and the Chancery Division. He was able to give very clear definitions of their roles as follows:
"The Court of Protection is for people who are incapable of managing their affairs so that their affairs are looked after by the Court of Protection. You make an application if a person is weak and incapable of managing their affairs and the Court will take over the administration for them. Chancery is the main division in the Queen's Bench where they deal with wills, land, probate, property and such like."
[Mr S's] carer spent about ten minutes with him during which time I left his bedroom. When I returned to him he was able to recall my name and when I asked him if he could tell me why I had come to see him, his response was:
"[R] has complained that Jane has robbed me or is robbing me. She wants to take Jane to Court which I completely oppose and I am against it."
I asked [Mr S] who his current visitors were. He told me that his daughter [R] visits him every Wednesday and that his daughter [A] comes to see him about once per month. He told me that [Mrs D] visited at least once per week and was able to recall, although she hadn't been in the room with us for around 30 minutes, that [she] was using a crutch to walk. He told me:
"She has had an operation on her feet and despite this she still comes to see me. I find this very moving."
[Mr S] was initially unable to tell me how much money he had given to [Mrs D], at first telling me that he thought it was probably a few hundred pounds. I told him that I understood that the sum was several hundred thousand pounds he appeared surprised, but told me that he still felt he owed her a debt of gratitude that money alone would not repay. He was able to tell me without any prompting that [R] collects his pension for him and that his daughters will be the beneficiaries of his Will. When I asked him – as I had during my previous assessment – if he thought it was right that [Mrs D] should have received more from him than both of his daughters put together, he told me that this would be what he would wish. When I asked him how he would divide a fortune of a million pounds if he had it between [Mrs D] and his daughters, he told me that he would want to give a "sizeable proportion to Jane. I would leave her half the million". When I asked if he would really want to leave Jane more than his daughters in this way, he answered: "Yes, unhesitatingly.""
"Opinion regarding [Mr S's]capacity
to decide whether the Chancery proceedings should have been issued in January and to express his views about the matter
It would be my opinion that [Mr S] does have sufficientcapacity
to decide whether or not Court proceedings should or should not be issued against [Mrs D]. Although [his] memory is extremely poor, if prompted he quickly recognises the facts and issues involved. With prompting he recalls the gifts and his reasons for making them, the fact that his daughter [R] is trying to recover the money and the current Court proceedings. He is able, without any prompting, to recall the jurisdictions and functions of the Court of Protection and the Chancery Division. Once he has been reminded of the facts of the situation in relation to the Chancery case he is able to retain that information for a matter of several minutes during a conversation. [His] reasoning and abstract thinking still are very well preserved and he is able to
use
and
weigh
the information that he can retain for several minutes and
use
it to make a decision about whether or not he wishes the case to proceed. Finally, his language skills are also well preserved and he is able to articulate very clearly the decision that he has made."
(f) The report of Dr Jan Falkowski dated 15 October 2009
(g) The report of Dr Barker
(1) Mr S's understanding of money and its value, including in the context of the cost of living;
(2) his understanding of the circumstances in which he made the gifts to Mrs D, including in particular the cheque for £301,941 given in August 2006;
(3) his understanding of the effect of the gifts made to Mrs D on his overall financial/asset position, including his understanding of the effect at the time the gifts were made;
(4) his understanding of his present and future financial needs, including for care, and how these were to be provided for; and
(5) his understanding of the consequences of his recovering, or not recovering, the sums paid to Mrs D in the Chancery proceedings, whether in whole or in part.
"2.2.2 … His response, which he repeated in very similar vein on several other occasions during the interview, was that whatever money he had given [Mrs D], was of his own volition. There was no pressure or strain brought to bear on him to do so. He repeated that it was voluntary, of his own free will, with no constraint and no pressure.
…
2.2.4 … I asked him if there had been any times that he had had a rift or a disagreement with his daughters. He said that there had been no rift though he might have had an occasional disagreement, but he would put it no higher than that. He said it was the sort of disagreement that families normally had. I told him that I thought I had read that he might have had a rift or been estranged, or had a disagreement with one or more of his daughters. He denied this, saying that perhaps he wasn't feeling well when he declared this. He denied that they had ever fallen out to seriously affect their relationships …
2.2.5 I asked him to tell me a little about [Mrs D] he could not tell me how he got to know her. He thought that perhaps she used to come and look after him, and said that he had had nothing but courtesy, kindness and consideration from her … He thought he had perhaps known her for five-six years, and that she had been visiting continuously. He said that she had become a dear friend and that he had valued her friendship tremendously …
…
2.2.7 At the end of this section of the interview I asked him about [Mrs D] again. He told me that he could not recall how they had met, but she visits 2 or 3 times per month. He told me again that ever since he had known her, she had shown nothing but courtesy, kindness and goodwill. "She has been a rock, just like my daughter".
2.2.8 I asked him how he managed his finances. He said that he got a state pension and a little private pension, though could not recall how much. He thought that he was comfortable, that he had more than enough. On further questioning, he estimated that he had an income of £40 per week … I asked him what his estate was worth, checking to see he understood this concept. He thought he had savings of approximately £15 - £20,000, and that [R] would know. He didn't know how she looked after this money in terms of what accounts or shares or financial mechanisms she used. He thought his bungalow was worth £40,000.
2.2.9 I asked him whether he recalled giving [Mrs D] any money. He said, yes he did remember, and that it was unsolicited, voluntary, commenting that she was reluctant to accept it. He told me that he had given her money on no more than two occasions, to express his gratitude. He said the money had been given for the care and kindness which she had shown him and continues to show him. He thought the last time he had given her any money was 3 or 4 years previously, that he didn't know whether she needed it, and spontaneously said that she did not ask for it. He thought in total between the two occasions he might have given her between £300 and £400. I told him that one of the concerns the Court had was that he might have given her substantially more than that. He denied this: "In fact it could be less". He felt that the money was a small amount. When I again said that the Court thought that he might have given her half of his wealth, he seemed unperturbed by this, saying "oh yes, that could be right". I pointed out that if he thought he had given [Mrs D] £400 and his house was worth £40,000 then that seemed a big difference in proportion to giving her half of his estate. He found it difficult to follow my "proportion" line of reasoning, or percentages. He denied that it would be of any concern to him if he had given her half of his estate, though could not recall having done so.
2.2.10 He said he had not put [Mrs D] in the will at all, leaving his estate to his two daughters. I asked him how he would divide his estate all together, if he had a million pounds to share between his daughters and [Mrs D] over the previous and terminal 5 years of his life. He told me that he would give his daughters two thirds, and one third to [Mrs D] …
…
2.2.13 I asked him a bit about his finances and future; that given his increasing age and frailty that he might one day need to move to a care home and would need finances to support this. He said that he would need money if he went into a care home, and that his daughter would come to his aid in every way possible. He said he had not made provision himself for his future care and that it would be his daughter's responsibility. She would take care of it. "She will see to it. Whatever money I have she willuse
it, and if there is any shortfall, she will see to it". He insisted that she would be happy to
use
her own money as they had a very good relationship. I queried the potential unfairness in this if he had given a large proportion of his wealth to [Mrs D] and then his daughter [R], had to find money out of her own purse to pay for his future care. He did not appear to understand the point I was making, again reiterating "Whatever I have given to Jane, I have given to Jane". He also reiterated that his daughter was his life and support, and that he relied on her, seeing to his needs and requests.
2.2.14 In order to check out his memory and consistency within one conversation, I went back to asking him how much he felt he had given [Mrs D]. He said he would guess that it was between £150,000 and £200,000. When I told him that earlier in the conversation he had told me he had given her £300 - £400, he denied this, saying that the most he had given her was £200 - £300. He told me that he thought the house was worth £35,000. He told me on this occasion that he had given [Mrs D] sums of money on 3 or 4 occasions, and that he hadn't given her a lump sum – "it was bits and pieces, here and there". He reiterated "Whatever I gave Jane, was from my own volition, no constraint and with no compulsion". He repeated that it wasn't a large amount of money that he had given."
(a) to have insight and understanding of the fact that he has a problem in respect of which he needs advice;
(b) to be able to instruct an appropriate adviser with sufficient clarity to enable the adviser to understand the problem and advise him appropriately; and
(c) to understand and make decisions based upon, or otherwise give effect to, such advice as he may receive.
"3.5 There is consensus from previous psychiatrists that [Mr S] suffers from dementia, either alcohol related or from arterial disease in the brain. I do not have medical records, but I would agree that either or a combination of both is possible. The exact cause is probably not of great consequence in this case.
3.6 Although experts have raised varying concerns about [his]capacity
, with mixed views on his ability to give gifts and set up a will, none appear to have formally assessed or explicitly considered [his] frontal/executive functioning, which I think is of relevance and would help explain his sometimes contradictory presentations.
3.7 "Executive" functions of the brain are higher order cognitive abilities that enable the mind to organise and coordinate, necessary for skills such as learning, remembering and attention. Executive functions initiate, sequence and carry through intentions, correct errors and adjust responses accordingly. They also inhibit/stop us from doing things. Executive functions help us generate and select appropriate and ongoing responses.
3.8 The dysexecutive syndrome refers to symptoms and signs caused by frontal lobe damage and loss of healthy executive function … People with impaired executive functioning lose flexibility in their thinking, are less able to consider alternatives and less able to solve problems. Reduction in abstract reasoning reduces a person'scapacity
to
weigh
up alternatives.
3.9 The frontal lobes and executive functions might very reasonably be expected to be affected in either alcohol-related or cerebrovascular disease-related brain disease. [Mr S's] performance on testing of categories (animals) and the FAS test (screening tests indicating frontal lobe involvement) are abnormal, particularly, in my opinion, in someone who was as skilled with words as [Mr S].
3.10 Frontal lobe functions and in particular executive symptoms are often clinically overlooked as they are more complex to elicit. The Mini-Mental
State Examination, the most widely used cognitive test in old age psychiatry, is known to be poor at testing frontal lobe function, and preserved abilities may often give the misleading impression of greater
capacity
.
3.11 [Mr S] is able to repeatedly say that whatever he did with regard to gifts to [Mrs D] he did voluntarily without compulsion. While his views are important, this does not necessarily indicatecapacity
to judge the appropriateness of that gifting.
3.12 It seems clear, given the range of sums and range of proportions of his total estate that he believes he gave [Mrs D], and his dependence currently on [R] to manage his affairs, that he does not havecapacity
to manage his financial affairs.
3.13 His apparent lack of appreciation of the difference the wide variation of sums he may have given to [Mrs D] would have on his estate, both for his own future care needs or his daughters, seems to me to be hugely out of keeping with his apparent very keen judgment and involvement in considering financial affairs and security for family as demonstrated by his letters in 1998/2000. His views then on emotional attachment and dependence may also be of relevance.
3.14 He gave me and other doctors factually incorrect and contradictory statements about his daughters and [Mrs D] (for example numbers of children, how long he had known [Mrs D], which was the eldest of his daughters, how often he saw them). It is difficult to believe in these circumstances that he has a reasoned judgment on the "claims to which the giver ought to give effect". He did not appear to understand the relevance of fairness in sharing his estate or in his expectations from [Mrs D] and his daughter [R].
3.15 He is also in my opinion vulnerable to influence, as evidenced by his statements to Paul Judkins and Dr Cook in contradiction to previous statements, and in the ease with which he accepts markedly different sums of money as reasonable to have been given. His relative isolation, dependence due to physical disability, cognitive impairment and sensory impairment are all markers for potential vulnerability to influence."
"However, I would offer the court my impression that at interview, and through my reading of his previous interviews, [Mr S] has maintained a view that he is grateful for the attention and care that [Mrs D] has paid him, and for the friendship she has showed him, and that he intended to give her some financial gift as an acknowledgement of this."
(h) The third and fourth reports of Professor Howard
"I have been asked to prepare a further report giving my opinion on this point because more than six months have passed since I last examined him and in order to carry out my own examination of the executive functions supported by [his] frontal lobes."
"Jane has been a tower of support; a pillar. People will be suspicious. I suppose I can understand their suspicions although erroneous and unjustified. They worry whether undue influence was applied. Whether I was put under pressure. They would ask why I would do this thing? I suppose I can understand why [R] would be concerned."
"[Mr S] continued to hold the view that he would wish that the Court proceedings should be stopped. He told me that he could understand why people might think that he had been exploited by [Mrs D] but did not consider himself that this had been the case. He was not able to recall the sums of money involved and his response when reminded of this was very much as when I had seen him before in terms of expressing his wish that the gifts were a reflection of his regard for [Mrs D] and the support that she had given to him and that he would make very similar dispositions if the money were still his to give away."
"Executive functions include planning, judgment, initiation, flexibility, impulse control and abstract reasoning. They are sometimes called frontal lobe functions because they are impaired in patients who have evidence of structural damage to their frontal lobes and because functional brain imaging experiments have demonstrated that healthy individuals activate areas within the frontal lobes while they are performing cognitive tasks that involve them. Although there are formal testing protocols that have been validated for the assessment of frontal lobe functioning and which are usually administered by psychologists who have been trained in their delivery and scoring, there are a number of bedside clinical tests which are routinely used by psychiatrists and neurologists to assess patients with possible frontal lobe damage. These tests include verbal fluency, proverb interpretation, questions about the similarities and differences that exist between objects, and cognitive estimates. An examination of the function of the frontal lobes may also involve an assessment of a patient'scapacity
for abstract thought and reasoning and their ability to reflect upon their situation and that of others."
"Probably 3 or 4 zoos in Holland, each with 3 or 4 camels so between 9 and 16."
"Capacity
for reflection
On each of the occasions that I have examined [Mr S] I have been struck by his thoughtful and insightful appraisal of his own position and his apparent consideration for other people. Thecapacity
for such thoughtful reflection would be seriously impaired in a patient with significant frontal lobe or executive functioning deficit. When I asked [him] to tell me what he thought the future held for him and what there was about his life that made it worth living he told me:
"I live from day to day. I have no plans. I am completely dependent and reliant upon my daughter [R]. She sees to my well being and welfare. I can never repay my debt to her. The thought of death goes through my mind. When will it come? I yearn and pine for my death. I cannot see the point of my continued existence in this manner and form. I have a good daughter. Her visits give pleasure. Visits from Jane. Now that I can't read and reading was my great pleasure and I do not like to be read to. Suicide has crossed my mind. I survey the present life and I cannot see an end to it and I say to myself what is the point or purpose? But I have a religious streak in me which says no – there is a divinity that shapes our destiny and it is not for you to decide or be the arbiter of your life."
I asked [Mr S] if this meant that he would be happy to go off to sleep one night and never wake up again and he responded with great animation:
"This would be a joy. I wish it every night. You have taken something very deeply from my mind."
[Mr S] was aware of the recent earthquake in Haiti and was clearly distressed by the deaths and suffering that he knew it had caused. As he had previously told me that he was religious, I asked him if he could understand why some people would think that the occurrence of such disasters made it difficult to believe in the existence of God. He responded:
"I have the same doubts myself. I ask myself, where was God? How could he let these things happen? I can't resolve this. It is a conundrum that remains. If there is a God and he is all powerful, then there is nothing that is beyond him to cure, control and make good. If he allows this sort of thing, then he is a funny sort of God. Not bad, but a mysterious sort of God who doesn't make any sense to me".
Towards the end of my examination, [Mr S] asked me if I would mind if he smoked a cigarette. I told him that since we were in his house he could and should do as he pleased. His response was to thank me and to add:
"Yes, but there is such a thing as courtesy and consideration. Smoking is not very popular with many people for good reason and I can understand people's dislike of smoking. Tobacco is my only pleasure …"
Opinion concerningcapacity
[Mr S] has a profound impairment of his memory functions but has well-preserved reasoning and language abilities and remains highly articulate. His overall cognitive impairment, as assessed with the Mini-Mental
State Examination appears to have been non-progressive during the 20 month period over which I have been able to examine him and this would argue against a contribution from Alzheimer's disease pathology to his memory difficulties. My testing of the functioning of his frontal lobes revealed that while his verbal fluency was poorer than would have been expected from an individual with his educational background, he was still able to perform this function at close to the normal level. When I tested other functions of his frontal lobes which are directly relevant to his ability to reason and reflect, he performed within the normal range on these tests. I continue to hold the opinion, given in my second psychiatric report dated 10 June 2009, that [he] does have
capacity
to make the decision as to whether or not the Chancery proceedings should continue. In order to make such a decision he will need to be initially reminded of the facts of the situation. He is able to retain the necessary information for a period of a few minutes and has sufficiently preserved reasoning abilities to be able to
use
and weight this information in order to make valid decisions. Finally, his language skills are well preserved and he has no difficulty in articulating decisions that he has made."
"As you know he made gifts to [Mrs D] totalling about £549,000. At the time that left him with about £80,000 in savings and his house … with an approximate value of £270,000. As far as income is concerned he had his state pension worth £13,056 per annum, an occupational pension £1,140 per annum and a private pension £21,432, producing a total pension income of £35,628 plus he got attendance allowance of £44 a week = £2,288 per annum = £37,916 per annum = just over £3,000 a month."
"(1) [Mr S's] understanding of money and its value including in the context of the cost of living
I read out this point to [Mr S] and asked him if he understood what I was trying to establish. He responded by saying:
"Money is a means of exchange without which one cannot get on in life."
When I asked him how much he thought his food and tobacco cost per week he told me that he had no idea because his daughter kindly took care of things for him and provided everything he asked for.
When I asked him if he knew the value of his house, he told me that he understood it to be worth "about £300,000". When I asked him what he thought the average weekly working wage in the UK would be, he responded "£200". I would consider that his estimation of the value of his house was probably accurate. His estimation of the average wage was a bit low, but was of the correct order of magnitude.
I had been given the following details of [his] finances which I explained to him: Gifts made to [Mrs D] £549,000; Savings remaining £80,000; Value of [his] bungalow £270,000; Income from pensions and attendance allowance £3,000 per month. [Mr S] was able to comprehend and retain this information, certainly for several minutes as we discussed the size of the gifts to [Mrs D] in relation to his remaining assets. He was also able to appreciate how significant these gifts had been. When I asked [him] what he thought about the size of the gifts he had made to [Mrs D] he told me:
"It comes as a surprise to me to learn that the gifts were about twice the value of my house. But I did what I did. I have no regret or qualms".
I concluded that [Mr S] does have an adequate understanding of money and its value and that while he has become unfamiliar with the cost of every day necessities, he was able to spontaneously recognise the significant size of the gifts he had made to [Mrs D], place the magnitude of these gifts in terms of multiples of the value of his home, express surprise that he had been so generous and his satisfaction with the fact that the gift was made.
(2) [Mr S's] understanding of the circumstances in which he made the gifts to [Mrs D], including, in particular, the cheque for £301,941 given in August 2006
[Mr S] is unable to recall, in anything other than the very vaguest way, the circumstances in which he made these gifts. He told me that he believed that there had been what he called "a lump sum" and some smaller gifts and he told me that he was "adamant" that the gifts had been what he described as "a spontaneous gesture" in response to his experience of [Mrs D] as someone helpful and genuine.
I concluded that [Mr S] does not have thecapacity
to independently recall the circumstances in which he made the gifts as a consequence of his memory disorder. However, if he is reminded of the extent of the gifts he is able to explain why he believes he made them.
(3) [Mr S's] understanding of the effect of the gifts made to [Mrs D] on his overall financial/asset position including his understanding of the effect at the time the gifts were made
As I reported in point (1) [Mr S] expressed surprise at the size of his gift to [Mrs D] but was quick to add that he did not regret having made the gift. When I asked him what he thought would have been the effect on his overall financial position of having made this gift he told me:
"A good effect. I always had the idea in my head not to pay inheritance tax and the word "offload" is very clearly in my mind. I cannot remember the exact context, but I do distinctly remember I wanted to offload myself of the money that I had."
When I suggested to [him] that an important effect of these gifts was that he subsequently had less money to leave to his daughters who might very reasonably have expected to inherit the bulk of his estate he told me:
"They can expect what they want. What I do is a matter for me. But I can understand they would be disappointed".
I asked [him] if he was really happy to have made the gift in the knowledge that this would mean that considerably less money would ultimately be received by his daughters and he indicated that he was.
I concluded that despite his lack of memory for the circumstances surrounding the making of the gifts, [Mr S] does havecapacity
to understand the effect of these gifts on his overall financial position. He raised the effects upon the reduction of his potential inheritance tax liability without any prompting from me. When I raised the issue of his daughters' potential disappointment with their consequent inheritance, he was able to understand the reasons why they would be disappointed but expressed his intention that this was the way that he had wished to conduct his financial matters and still did.
(4) [Mrs S's] understanding of his present and future financial needs including for care and how these are to be provided for
I reminded [Mr S] that by virtue of the gifts of money that he had made to [Mrs D] he was left largely dependent upon the income that he received from his pensions and attendance allowance to pay for his living expenses and any care needs that he had. If, for example, he had to go into a Care Home, his income might not be sufficient to pay for a really first class one that he would have been able to afford had he not made the gifts. He responded:
"I understand that I have no other means of support but my pension and this house left. I have exposed my vulnerability, I can see that. But this does not trouble me in the least."
When I pursued this point further with him, adding my observation that some Local Authority-funded Care Homes are somewhat grim and basic and that he might – if he found himself resident within one – come to wish that he had been able to afford something better, he told me:
"No. I would just accept it as things come. It would not worry me."
I concluded that [he] does havecapacity
to understand his present and future financial needs, including the costs of care, and that he is able to understand what the effects may be upon his ability to access first class nursing home care in the future.
(5) [Mr S's] understanding of the consequences of his recovering or not recovering the sums paid to [Mrs D] in the proceedings whether in whole or part
I asked [Mr S] to tell me what he thought would be the likely consequences for himself, his daughter and for [Mrs D] of the following scenarios and have reported his responses as follows:
1. Court decides that money should be recovered in whole
Consequences for [Mr S]:
"I would be very embarrassed and hurt if Jane were forced under duress to return the money and I would want to give it back to her. I would have more money, but I would be devastated, sir. You say I may need more money for a nursing home but I will cross that bridge when I come to it. At the moment I do not need extra money."
Consequences for [Mrs D]:
"She would be disappointed and hurt. I imagine it would cause her a great deal of inconvenience."
Consequences for his daughter:
"She would be glad if she has been the author of this case. She will feel that much more wealthy and prosperous. But I don't blame her for this."
2. Court decides that the gift should not be recovered
Consequences for [Mr S]:
"No change. Not the slightest bit. I don't want or need any more assets at my time of life."
Consequences for [Mrs D]:
"No change in her situation."
Consequences for his daughter:
"She'll be disappointed but will just have to bear it. From a different angle I can see that she feels cheated of something that would have otherwise have come to her.
3. Court decides that the gifts be recovered in part
I asked [Mr S] if he thought that some compromise ought to be made in this way and that if it was to be made, what proportion of the gift did he think should be recovered in order to be as fair as possible to all parties and he told me:
"I don't like this idea. As I have said I did what I did and I don't regret it. But if it were the only way out of the current situation, which I deplore, I would consider it and would think that 25% to 30% would be the amount that would be given back."
When I asked him what the consequences of following this course might be, his responses were:
Consequences for [Mr S]:
"Without doubt I would feel embarrassed. I would have more assets myself."
Consequences for [Mrs D]:
"She will be hurt, very hurt. I should think it would make a big difference to Jane's financial position. She might lose her house and I do not want this under any circumstances."
Consequences for his daughter:
"She will be pleased and know that the money will be hers when I die."
I concluded that [Mr S] does have acapacity
to understand the consequences – both for himself and for others – of recovering or not receiving the gifts made to [Mrs D] as a consequence of these proceedings.
Opinion concerningcapacity
[Mr S] has a very severe amnestic disorder but his ability to understand information presented to him, retain it for a few minutes while he can examine it, make understandable and consistent decisions and then express and defend these decisions is sufficiently preserved so that my opinion remains that he hascapacity
to make valid decisions as to whether or not the proceedings in the current case should be continued. I acknowledge that my approach to the assessment of [his]
capacity
has involved assisting him by reminding him of the size of the gifts made to [Mrs D] and the presence and extent of his other assets and sources of income. This would reflect my normal clinical practice when assessing
capacity
in a situation like this where I believe it is [Mr S's] ability to understand and manipulate information and express his decisions that constitutes
capacity
and that providing him with the information that he would otherwise not have been able to recall is a necessary component of a fair assessment."
(i) The joint statement of Professor Howard and Dr Barker
"Dr Barker's view is that the circumstances of the donation of the gifts are complex and there is also evidence of vulnerability to influence. In those circumstances Dr Barker's view is that the decision to continue the proceedings or to enter into a compromise of the claim requires a relatively high level ofcapacity
. In Dr Barker's view [Mr S] does not have sufficient
capacity
to make these decisions because he is unable to recall even if he is reminded, to
use
or
weigh
the relevant information as part of the process of making the decision.
Professor Howard's view is that despite the presence of cognitive impairments, [Mr S] retainscapacity
to make the decision."
(j) Professor Beaumont's report dated 3 June 2010
"In general summary it is my opinion that even if [Mr S] were to receive a very considerable degree of support in exercising hismental capacity
, he would not be able to do so in relation to the current matter. As a result of a number of factors, including his poor orientation, his poor ability to reason about novel situations, his severely impaired memory, and the fact that he does not recognise inconsistencies in his own reasoning and does not have an appreciation of the present value of money, then I do not consider that [Mr S] is able to exercise
mental capacity
with respect to the relevant decisions. He also has a severe deficit in his ability to perform
mental
arithmetic, even with quite small amounts. I note that a broad range of opinions have previously been reported with respect to [his]
mental capacity
, but with respect to the opposing views of Professor Howard and Dr Barker as expressed in their Joint Statement of April 2010, I find my opinion close to the opinion expressed by Dr Barker, but in disagreement with the opinion of Professor Howard. The reasons for my opinion are stated in this report."
(a) three selected subtests (Similarities, Arithmetic and Comprehension) from the Wechsler Adult Intelligence Scale III (WAIS-III);
(b) the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS);
(c) Cognitive Estimates Test (CET); and
(d) Behavioural Assessment of the Dysexecutive Syndrome (BADS).
"I administered a number of formal psychometric tests to [Mr S], relevant to my opinion with respect to his currentcapacity
. I note that the Mini-
Mental
State Examination has been previously employed on a number of occasions to assess [Mr S] and while this is a useful brief screening test, it is not specifically designed for the purposes of assessing
capacity
, and cannot be regarded as more than a rather rough and ready screen. I do not feel that it satisfactorily addresses the issues currently under consideration. I first administered three subtests from the WAIS-III with interesting results. It is difficult to infer [Mr S's] premorbid general cognitive ability as he was born in Fiji, although he is an ethnic Indian, and came to the UK in February 1962. I am not entirely clear about his occupational history, but I understand that he was a civil servant. It seems reasonable to conclude that [his] abilities in adult life were at least above the average for the population of his age, and it is likely that his abilities were in fact in the High Average range or better. His current level of Comprehension as assessed by the WAIS-III is consistent with this inference. [He] obtained a result on this test of everyday reasoning ability which places him in the High Average range and at the 91st percentile for the normal population of his age. There appears to be no deficit in this area of his abilities. However, this should be contrasted with the other subtests which I administered to him. On the Similarities subtest which is similarly a test of verbal reasoning [his] result was at the borderline for frank abnormality and at only the 5th percentile. His Arithmetic subtest placed him in the borderline range and at only the 9th percentile. Both these results are severely impaired with respect to his inferred premorbid level of ability. The contrast is instructive. When [he] is relying upon previously learned knowledge about the world, as for example in understanding why laws are needed about the employment of children, or why people should pay taxes, then he is able to rely upon his previously acquired knowledge and so perform at a satisfactory level. However, presented with novel problems which require him to reason as in being asked to say how steam and fog are alike, then he is unable to do so. He is also unable to perform more than the most elementary
mental
arithmetic.
I also administered selected subtests from the RBANS, principally to provide a brief assessment of [his] memory abilities. Again there is an interesting contrast. The Digit Span subtest, which [he] performed within the Average range (44th percentile) demonstrates that while there is a moderate degree of impairment in his working memory, this is not grossly abnormal. However, the other tests of [his] verbal memory function were all within the abnormal level, and his delayed recall and recognition were all extremely poor … these results clearly confirm what has been previously understood which is that [he] has a severe impairment of his auditory verbal memory. This is, however, in the context of only a moderate impairment in his verbal working memory. I also took the opportunity to administer the Semantic Fluency subtest which was also severely impaired and within the borderline range further suggesting that [he] has difficulties of reasoning and response control, possibly associated with some abnormality of his frontal lobes. It is only possible to calculate one of the indices on the RBANS, from the selection of subtests administered, and this is Immediate Memory. This index is in the abnormal range and at only the 2nd percentile for the normal population of [his] age.
I administered the Cognitive Estimates Test which [he] decisively failed … I note that Professor Howard (19.1.10) also administered the CET and reports that [his] performance was normal. I have no explanation for this result, which is completely inconsistent with the current result; I can only report that [his] everyday verbal reasoning was grossly abnormal in my examination.
The only other brief test which I was able, reasonably, to administer to [Mr S] was the Rule Shift subtest of the BADS. [Mr S] grossly failed this test, gaining an "impaired" score and demonstrated a severe inability to inhibit salient responses and to demonstrate normal response control. This is a further sign that there may be some frontal lobe disturbance in [Mr S] and that he has difficulty in controlling his behaviour including the verbal responses which he produces, if these are not relatively routine and strongly contextualised."
"However, this is part of the difficulty in reaching an opinion in this case. From the evidence in my examination, and in the other opinions which I have reviewed, it seems that [Mr S] does have an adequate level of auditory comprehension. He may require a little assistance in the way of the explanation of matters but he essentially has the ability to understand what is said to him within the normal range. With respect to his ability to retain relevant information, it is clear that [he] has a severe impairment of his verbal memory. It has generally been accepted, as the present examination provides clear evidence, that [his] memory abilities are very impaired. Without assistance [his] memory problems would be sufficient to result in an inability to exercisemental capacity
, but if [he] were to be given an adequate level of assistance such as having information recorded in a way which would enable him to read it, or listen to it, then his memory deficit might not be a bar to his being able to exercise
capacity
. Nevertheless, this is a difficult area and should be carefully borne in mind in allowing [Mr S] to exercise
capacity
on his own behalf. Unless very effective supports were provided to him to circumvent his memory deficit, then he would not be effectively able to exercise
capacity
. [Mr S] is clearly able to express a decision which he has reached. The problem therefore centres around whether [he] is able to
weigh
matters in the balance and reach a decision. This is usually the most contentious element of the functional test. Because an individual is not required to make a prudent decision, or one which others would regard as in his best interests, then it can be very difficult to decide whether relevant information has been weighed in the balance in reaching a decision. This is a source of frequent disagreement amongst psychiatrists, neuropsychiatrists, and psychologists. In general terms, it is my conclusion that [Mr S] is not able to
weigh
matters in the balance normally in order to reach a decision. The evidence for this is his lack of orientation, and his inability to reason about novel questions even in an everyday context, such as is demonstrated by his Similarities and CET test results. He also has difficulties in control of his thinking as evidenced by Rule Shift and a problem in reasoning about quantities, and especially numerical quantities as evidenced by Arithmetic and also by the CET. Although whether [he] can exercise
mental capacity
will be dependent upon a specific type of decision, in general the test results indicate that he lacks the cognitive abilities which enable him to
weigh
matters in the balance in a normal manner in order to reach a decision. Even though [he] might receive all the possible assistance in enabling him to have the relevant information at hand, the fact that he is unable to normally engage in the process of reasoning about a decision results in the fact that in general he is likely to lack
mental capacity
."
"4.4A [Capacity
to decide whether the Chancery proceedings should be continued]
It is my opinion that [Mr S] does not have thecapacity
to make this decision. This is for two reasons. The first is that he has only an incomplete, partially incorrect, and limited understanding of the nature of the current proceedings. I asked him to tell me what the case was about and he told me that he thinks that his daughter has made a complaint, about the fact that [Mr S] was receiving too much attention from [Mrs D] and spending too much time with her. He also told me that she is "not here for my money". [Mr S] was unable to tell me any more about the current case. I then specifically asked him if he had made any gifts of money and the values of these gifts. He told me that he thought he might have made gifts to a total of "£200". I asked [him] if he would be surprised to learn that he had made gifts totalling hundreds of thousands of pounds. He responded "yes, it would surprise me". As will be discussed below, [he] was unable to demonstrate an adequate understanding of the effect of the current proceedings for himself, [Mrs D], or his daughters, whether the proceedings were to be continued, or not. It might be argued that [his] understanding of the proceedings could be assisted by extensive support being provided to him, so as to enable him to exercise
capacity
in this regard, but as will be already clear I do not consider that [he] retains the cognitive ability to reason about these matters even if he were given every possible support.
4.4B [Capacity
to enter into a compromise]
As it is my opinion (see A) that [Mr S] lacks thecapacity
to decide whether the current proceedings should be continued, because of his lack of understanding of the matter and, if he were assisted to understand it, his inability to reason normally about it, it must follow that he lacks the
capacity
to enter into a compromise of the claim on whatever terms might be proposed.
4.4.1 [His understanding of money and its value]
I asked [Mr S] to estimate a number of sums of money and he demonstrated a serious inability to appreciate the current value of money. [Various examples are then given]. While some of these responses are not grossly inaccurate, those which involve more significant sums are serious under-estimates of their value and [Mr S] has therefore demonstrated an inability to appreciate the current value of money. The Arithmetic subtest of the WAIS-III has also demonstrated his inability to perform simple calculations, and I therefore conclude that [he] lacks a normal understanding of money and its value, including in the context of the current cost of living, or the current cost of care.
4.4.2 [His understanding of the circumstances in which he made the gifts to Mrs D]
I asked [Mr S] about this gift [i.e. the gift of £301,941]. [He] had no recognition or awareness of the gift. On the basis that he accepted the information which I gave to him about the gift, he was unable to give me a clear reason why he might have given the gift. He simply told me that she [Mrs D] "touched me very deeply" but could provide no further explanation. When told the total sum of the gifts which he had made to [Mrs D], which I understand to be in the region of £540,000, [his] only response was "I did what I did and that's an end of it".
4.4.3 [His understanding of the effect of the gifts on his overall financial and asset position]
I cannot comment upon [Mr S's] understanding at the time that the gifts were made; being obviously unable to examine his cognitive status at that time, and [he] is quite unable to recall the relevant period. His present understanding is extremely limited. If he is told that he has gifted all his assets but his bungalow and his pensions then he simply accepts this information without any apparent concern. Specifically asked about the effect upon himself, [he] responded "Nothing. I just like doing it and I did it. I am neither depressed nor elated". Asked upon his understanding of the likely effect upon [Mrs D] he told me that "I expect that she would be elated". Asked about the effect upon his daughters, [he] responded "They have accepted it". [He] gave no evidence of understanding the wider consequences of transferring substantial sums of money either in terms of its effect upon his own future security and welfare, the likely impact it might have upon [Mrs D's] life, or the impact which it could have for the future of his daughters. His present understanding is therefore very limited and only to the notion that receipt of a gift is likely to be a pleasurable experience.
4.4.4 [His understanding of his present and future financial needs]
I asked [Mr S] how he might provide for his needs in the future and whether he foresaw any difficulties. He told me that "I don't think so". He explained how he has his bungalow to live in and his retirement and state pensions and believes these are sufficient for his future needs. I explained to [Mr S] the likely cost of residence in a care home, of a reasonable standard, and asked him how he could meet these charges. He told me "I will just take pot luck". I explained to him that the consequence might be that he found himself in very unsatisfactory accommodation which might not adequately meet his needs and he responded "I would accept it, even if it is not so good for myself". [He] expressed the importance of having a "caring and sharing attitude" and his ambition that everyone should "live in amity and concord". While no one could disagree with these ambitions, I am aware that before his recent medical difficulties, [he] showed very considerable concern about the provision for his future and that his daughters should equally provide for their own futures, and also that he currently constantly telephones his daughter with complaints about his care and concerns about whether his care is being effectively provided. There does seem to be evidence that his current actual behaviour does not match his current expressed beliefs. In my view this is further evidence that [he] is unable to reason about his situation in a normal fashion and therefore not capable of weighing matters in the balance to reach a decision and that he therefore lacksmental capacity
with regard to relevant decisions.
4.4.5 [His understanding of the consequences of his recovering or not recovering the sums paid to Mrs D]
I asked [Mr S] what would, in his view, be the consequence of either recovering or not recovering the relevant sums of money. He told me that if the money was recovered, he would simply give it back to [Mrs D]. He said that he would do this even though he understands that there is a possibility that he might need the money for his own care in the future. He did not show any evidence that he understood the inconsistency of this position, or that he would clearly not be acting in his own best interests. If the sums were not recovered, then [he] stated that he would be "more than happy". I therefore conclude that [he] does not understand the consequences of his recovering or not recovering these sums, whether in whole or in part."
The expert evidence: (2) Cross-examination
"Q. … So it is fair to say that in your discussion with [Mr S] about the issue, you yourself knew very little indeed about what the proceedings were about?
A. In terms of the details, that is correct.
Q. You knew very little about what the proceedings were about. It is not just about detail. You had not read the particulars of claim; you had not been provided with the particulars of claim; you had not been invited to review the particulars of claim; you did not have any of that detail at your fingertips.
A. No, that is correct, those statements are correct, yes.
Q. Yet you are being asked to opine as to whether he understands, or has sufficientcapacity
to
weigh
the various competing factors that might properly be taken into account as to whether these proceedings should be pursued or compromised or discontinued. That is what you were being asked about, was it not? You could not properly do that without that information, could you?
A. I think that is for the court to decide."
"Q. … What he had given [Mrs D] was two-thirds leaving one-third to be split, i.e. a sixth each, to his daughters. You did not know that, did you?
A. No.
Q. So it is right to say, to put the point narrowly, that the claim in relation to the amounts sought to be recovered is different from the proportionate shares that you understood [Mr S] to be willing to give in the light of that discussion?
A. Yes.
Q. That is right. So your discussion with him is no guide, and indeed different from, what is actually in issue in the proceedings?
A. Yes. That is correct."
"I apologise if I have done a superficial job, but I felt that he had understood the sums of money involved had been several hundred thousand pounds, being a large amount of money, and represented his totals of disposable liquid assets."
"Yes, well, I suppose I have been guilty of asking him to balance in the most general terms rather than specific."
He agreed that it would have been helpful to the court if his report had set out the information and data provided to Mr S, together with a description of Mr S's understanding of that information, and if he had then proceeded to consider with Mr S whether he was able to balance those various factors and come to a conclusion. Professor Howard apologised if he had "not been sufficiently detailed", and said:
"Yes, I could have done a better, more detailed job. I accept that."
"Each clinician will have their own kind of way of doing these tests that they will have been trained in by the particular consultant they have worked with or that they will have read about."
The tests which Professor Howard had administered were ones which he had used six or seven times a week over the last ten or fifteen years.
"I think that with respect to thecapacity
for reflection, when you ask certain questions of [Mr S] he has fairly routine answers which spring from him rather readily. In fact he is rather repetitive in the statements that he makes. You cannot necessarily accept uncritically the idea that this represents high level reasoning on [his] part. It is in some sense an automatic habitual response which he is able to produce."
Professor Beaumont went on to say that recognition of this tendency is a matter of clinical judgment, but Mr S was extremely repetitive in the limited set of responses which he gave under questioning or in general conversation. Professor Beaumont accepted that he had not made this clear in his report, an omission for which he in turn apologised.
"What I conclude is that, as with many patients who have these kinds of executive disorders and problems with reasoning, is that they fall back on relatively stereotyped social speech and interaction. In fact my view may be partly coloured by the fact that in my hospital job I work with clients who have extremely severe and profound brain injury … Now, I am not suggesting that is the case for [Mr S], but he is on the road to that which is what one commonly sees in dementias of the kind that [he] has. Because he has difficulties with his cognition he falls back on a relatively restricted range of comments and remarks and responses which he makes, which are acceptable in the situation but are not … freely reasoned in the way that a normal intact individual would do."
Professor Beaumont gave as another example of a repeated phrase used by Mr S his expression that "[Mrs D] touched me very deeply". He added that the point of such responses was that they were socially quite helpful to Mr S in that they prevented any further discussion of his reasons for having acted as he did.
"So one has to take into account the patient's history, their current situation, their neurological status, whether they are depressed and/or anxious, and all these things in achieving a clinical interpretation of the test results. But you start with the science and you then have to put it into context."
"Because we have good reason to believe that he is not reasoning. He does not further explain the position which he takes. It seems inconsistent with the little that we know about his previous personality and it is not normal behaviour for a person of some reasonable degree of prudence."
The expert evidence: (3) Discussion and conclusions