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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of C (Capacity) 24-Feb-2021 [2021] JRC 051 (24 February 2021)
URL: http://www.bailii.org/je/cases/UR/2021/2021_051.html
Cite as: [2021] JRC 51, [2021] JRC 051

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Capacity - re delegation.

[2021]JRC051

Royal Court

(Samedi)

24 February 2021

Before     :

Sir Michael Birt, Commissioner, and Jurats Thomas and Austin-Vautier.

 

Between

Zoe Blomfield

Applicant

And

Attorney General

Party Convened

IN THE MATTER OF AN APPLICATION FOR THE APPOINTMENT OF A DELEGATE FOR

C

Advocate C. Hall for the Applicant.

Advocate S. A. Meiklejohn for the Attorney General.

judgment

the commissioner:

1.        This is an application by Advocate Blomfield seeking:

(i)        a declaration under Article 24(1) of the Capacity and Self-Determination (Jersey) Law 2016 ("the Law") that C lacks capacity to make decisions in relation to a légitime claim that she has brought to the Royal Court in respect of her late father's estate and in relation to a Trust ("the Trust") established by her father during his life; and

(ii)       her appointment as a delegate for C for the purposes of making decisions in relation to the légitime claim and the Trust.    

The unusual feature of the case, which has caused the Court to issue a written judgment, is that there is no medical report to support the suggestion that C lacks capacity in relation to the above matter.  Furthermore, although she chose not to participate in the proceedings, the Court was informed that C opposed the appointment of a delegate. 

2.        Advocate Blomfield does not fall within the category of person listed in Article 25(1) of the Law as having the right to bring an application under Article 24.  However, pursuant to Article 25(1), the Bailiff has granted her leave to bring this application. 

3.        The application first came before the Court on 18th November 2020.  As described in more detail below, it was adjourned until 10th December 2020, at which point it was then further adjourned.   The final hearing was on 28th January 2021, at the conclusion of which the Court granted the application and appointed Advocate Blomfield as delegate for the period of six months for the limited purposes of dealing with the légitime claim and the Trust and also directed that she should prepare a report to the Court at the expiry of the above period. 

4.        We now give the reasons for that decision.

Factual background

5.        The Court has received an affidavit from Advocate Blomfield together with three affidavits from Ashley Bidmead, a senior legal assistant at Viberts who assists in the management of delegations and regularly deals with clients regarding capacity matters.    

6.        In October 2017, C instructed Viberts to act for her in connection with a claim ("the légitime claim") to reduce the Will of her late father ("the deceased") ad legitimum modum on the ground that, as one of the deceased's two children, she had not been left her legitimate share.  The Executor of the Will is her brother ("the brother").   

7.        C reported to Viberts that she had had a difficult relationship with the deceased and had been estranged from him and from the brother at the time of the death of the deceased.  She alleged that she had suffered abuse at the hands of the deceased and as a result she had suffered from mental health issues, including severe anorexia.  In that connection she had been seen by Mental Health Services.   

8.        Viberts established, shortly before issuing the légitime claim, that the Trust had been established by the deceased.  The defendants to the légitime claim were named as the brother and the trustees of the Trust.   

9.        The légitime claim was issued in November 2017.  Thereafter, Advocate Clapham as advocate to the trustees and to the brother, engaged with Viberts.  He informed them that C was a beneficiary of the Trust along with the brother.  However, he said that the trustees were in possession of a letter of wishes from the deceased requesting the trustees not to benefit C from the Trust if she pursued an action for légitime.  This was apparently because the deceased was concerned that C's mental health was such that she would be unable safely to manage any large amount of money which she received on his death.  The légitime claim was tabled and has since been adjourned sine die by consent. 

10.      It was immediately clear that there were various choices available to C.  She could continue with the légitime claim and risk forgoing any benefit from the Trust.  From the information available, it would seem that the assets in the Trust greatly exceed the amount of the légitime claim.   Alternatively, she could explore with the trustees the level of benefit from the Trust she might expect to receive if she discontinued the légitime claim.  Following any discussions with the trustees, she would be in a position to choose which course of action was more advantageous for her.   

11.      At a directions hearing before the Master, the trustees were urged to meet with C and determine whether it was appropriate to comply with the letter of wishes and indeed form their own view as to whether C should benefit in some manner.  One of the trustees was present at the hearing and agreed to meet with C.  Indeed, the trustees wished to do so in order to understand her needs and make a decision on how they intended to benefit her. 

12.      As soon as C was required to meet with the trustees, she disengaged from Viberts and failed to provide them with any instructions.  Viberts made repeated attempts to contact her including letters, phone calls, text messages and visits to her flat but these were all to no avail.  When asked for instructions on how she wished to proceed with the légitime claim, she would always say that she would "think about it" or "get back to them with instructions" which she never did. 

13.      Eventually, following a letter from Viberts indicating that they were considering applying for the appointment of a delegate, C met with Advocate Hall and Mr Bidmead at the offices of Viberts on 24th October 2019.  Mr Bidmead gives a detailed description of that meeting in his affidavit, to which is exhibited a letter which he subsequently wrote on 18th December 2019, to the Capacity and Probate Registrar.   

14.      At the meeting, the options available to C were clearly explained to her and she was advised that her first step should be to meet with the trustees.  The trustees had made it clear they felt unable to propose anything until they met with C and had a clearer picture of her needs.  According to Mr Bidmead, it was clear that C saw the trustees as an extension of what she perceived to be the deceased's control over her and as a result she cannot distinguish between the two.  It was further explained to her that if she was not willing to meet with the trustees, she needed to instruct Viberts to proceed with the légitime claim.  However, she continued to be unable to provide instructions of any nature. 

15.      During the meeting C explained that she had recently suffered severe financial strain.  Her only income at present was from state benefits.  Advocate Hall pointed out to C that when she initially instructed Viberts, she had told Advocate Hall that her living arrangements were far from ideal and that she wished to use any money she received to try and find herself better accommodation.      It was pointed out to her that providing instructions as to how to deal with the légitime claim would mean that she would be able to receive the money she appeared to need, either from the claim or from the Trust and it was concerning that she did not appear to recognise that by failing to provide instructions to Viberts or to accept their help in making that decision, she would not progress matters.  C refused to accept this and considered that her inability to make a decision was understandable due to the relationship she had had with the deceased and because of her financial needs.     

16.      Various options were also pointed out to her for assistance in the form of an appointment of a delegate, an independent capacity advocate or use of a power of attorney.  C refused to agree to any of the options, but remained unable to say how she wished Viberts to proceed despite being made aware that she was at risk of having the légitime claim struck out and then being unable to pursue any financial claim.  The meeting ended when Advocate Hall and Mr Bidmead felt they were unable to explain the matter any more clearly to C and it was clear that she could not provide instructions.  Mr Bidmead informed C that, if she was able to think about the matter and make a decision, then she should call him, failing which Viberts would need to make an application for an appointment of a delegate. 

17.      C called Mr Bidmead a week following the meeting to discuss the matter further.  She said she did not want a delegate appointed but was unwilling or unable to give instructions on any of the other options which had been suggested.  Viberts informed her that if she did not give them instructions in one way or another, they would have no option but to proceed with a delegate application. 

18.      Advocate Blomfield, who is a partner at Viberts, and who generally acts as delegate, made an application in December 2019.  Following that application, on 2nd November 2020, with the consent of the brother and the trustees, the Master stayed the légitime claim until 14 days after this Court has determined whether or not a delegate should be appointed.  Viberts have had no contact with C since the meeting in October 2019.    

History of these proceedings

19.      Advocate Blomfield's application first came before the Court on 18th November 2020.  C had been served with notice of the hearing through the Viscount, but she did not attend.  Having read the papers and heard from Advocate Hall, the Court adjourned the proceedings.  When doing so, it ordered that the Attorney General be convened as partie publique in order to provide the Court with assistance in what were unusual circumstances.  The Court also gave directions for the obtaining of further evidence on a number of matters, including whether C had had previous contact with Adult Mental Health Services or Adult Social Services and on the value of the légitime claim compared with the value of the Trust.  Viberts were also directed to make enquiries of the Jersey Customer and Local Services Department (formerly the Social Security Department) to ascertain whether they had any information which would be of assistance to the Court.    

20.      At the resumed hearing on 10th December 2020, Mr Bidmead provided a further affidavit.  He reported on the enquiries he had been directed to make.  He also exhibited a letter from Advocate Clapham dated 31st July 2018, which contained the following passages:

"The trust is a discretionary family trust, but the letter of wishes addressed to the trustees makes it clear that [C] should be regarded as the principal beneficiary of the trust during her lifetime. 

The trustees have instructed me to confirm to you in writing that their overriding wish is to be able to utilise the trust fund for [C]'s benefit.  This could be by providing her with accommodation, an income or other benefits.  However, all trustees are constrained by legal duties and, as part of this, they can only exercise their discretion when they have adequate information on which to base their decisions  They are aware of the very considerable health problems [C] has had in the past (the sole reason why the trust exists) and will not know how best to benefit her until they have been able to gain a good understanding of her present state of health and her circumstances generally."

21.      The Court remained concerned at the adjourned hearing that there was no medical report in support of the application.  The Court was informed at both hearings that C was not willing to undergo any examination and had refused to disclose the name of her general practitioner or the practice in which he/she was based.  The Court nevertheless adjourned the hearing again and directed that further attempts should be made, possibly with the assistance of Mrs Patricia Winchester from My Voice, to obtain a medical report.  The Court also directed that the order should be formally served upon C.

22.      Unfortunately, attempts to obtain any information about C's general practitioner or to obtain a medical report were unsuccessful and accordingly, when the matter returned to Court on 28th January 2021, there was still no such report.  C again did not attend the hearing despite having been served with notice of the date.  Mrs Winchester informed the Court that she has known C in a professional capacity for a number of years and that C has a history of not engaging with attempts to assist her.  She believes that it is highly unlikely that C would engage with a capacity assessment undertaken by a medical professional. 

The Law

23.      Article 24 sets out the general power of the Court in connection with the appointment of delegates. The relevant provisions are as follows:

"24.   General power of the court to make declarations and decisions and to appoint delegates.

(1)       The court may make declarations as to:

(a)        whether a person ("P" in this Part) has or lacks capacity to make a decision specified in the declaration;

(b)        whether P has or lacks capacity to make decisions on such matters as are described in the declaration;

.....................

(2)       If P lacks capacity in relation to a matter concerning P's health or welfare or P's property and affairs, the court may, on an application made to it under Article 25:

(a)        by order make a decision on P's behalf as to the matter; or

(b)        appoint a delegate to make a decision on P's behalf as to such matters.

in accordance with this Part, and having regard in particular to Articles 3 - 6.

(3)       In appointing a delegate the Court must ensure that the scope and duration of the appointment are no greater than reasonably necessary having regard to all relevant circumstances. .............."

24.      As stated in Article 24(2), the Court must have regard to the matters set out in Articles 3 - 6 of the Law.  So far as relevant they provide as follows:

"3.   Principles to be applied

(1)       In the application of this Law:

(a)        a person must be assumed to have capacity, unless it is shown that the person lacks capacity in the sense given to that expression by Article 4;

(b)        a person is not to be treated (under Article 5 or otherwise) as unable to make a decision:

(i)         unless all practicable steps to enable that person to make the decision have been taken without success, nor

(ii)        merely because the person makes an unwise decision; and

(c)        an act done or a decision made, on behalf of a person lacking capacity must be done or made in the person's best interests.

4.        Lack of capacity

(1)       For the purposes of this Law, a person lacks capacity in relation to a matter if, the material time:

(a)        the person is unable to make his or her own decision in relation to the matter (as further provided by Article 5); because

(b)        he or she suffers from an impairment or a disturbance in the functioning of his or her mind or brain.

(2)       For the purpose of the application of paragraph (1)(b) it does not matter:

(a)        whether the impairment or disturbance is permanent or temporary; nor

(b)        what the cause of the impairment or disturbance may be.

(3)       Lack of capacity cannot be established merely by reference to:

(a)        a person's age or appearance; or

(b)        a person's condition, or an aspect of a person's behaviour, which might lead others to make unjustified assumptions about the person's capacity. 

(4)       In proceedings under this Law or any other enactment, the question as to whether a person lacks capacity for the purposes of this Law must be decided on the balance of probabilities. 

5.        Inability to make a decision

(1)        For the purpose of the application of Article 4(1)(a), a person is unable to make his or her own decision if he or she cannot:

(a)        understand information relevant to that decision;

(b)        retain the information for a period, however short, which is sufficient to make the decision;

(c)        use or weigh the information in making the decision; or

(d)        communicate the decision (whether by speech, sign language, or any other means).

(2)        Information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision.

6.        Best Interests

(1)        For the purposes of this Law, a determination as to what is in the best interests of a person lacking capacity;

(a)        must not be made merely on the basis of:

(i)         the person's age or appearance, or

(ii)        any other aspect of his or her condition or behaviour;

(b)        must not be made unless, so far as reasonably practicable, the person lacking capacity has been permitted, encouraged and supported to participate as fully as possible in any act done for or any decision affecting that person; and

(c)        must consider all relevant circumstances including in particular the matter set out in paragraphs (2) - (4).

(2)        Such a determination must include consideration as to whether it is likely that the person lacking capacity will at some time have capacity in relation to the matter in question, and if so, when that is likely to be ........."

Absence of medical report

25.      An application for the appointment of a delegate is normally accompanied by a report from a medical practitioner to the effect that the person in respect of whom the application is made lacks capacity and that this is because of an impairment or a disturbance in the functioning of the person's mind or brain.  This was also the practice for the appointment of a curator under the Mental Health (Jersey) Law 1969.

26.      However, it is clear that it is not a requirement of the Law that there is a report from a medical practitioner.  Thus, although Article 29(1) gives the Court power to order a medical report, this power is expressed to be "without derogation from the general power conferred under Article 24".  There is nothing in Article 24 which stipulates that a medical report is required. 

27.      This is consistent with the Code of Practice ("the Code") in relation to the Law issued by the Minister for Health and Community Services pursuant to Article 68 of the Law.  Relevant provisions from the Code under the heading "Assessment of capacity" are as follows:

"2.10   Responsibility for assessing capacity normally rests with the individuals who are involved in the decisions being made.  In many day-to-day decisions such as what to wear, what to eat or drink, the assessor and the decision-maker is often the person's carer.

2.11    Individuals are not expected to be professionally qualified to assess capacity.  For those supporting family at home it is sufficient to use what you know, see and experience to demonstrate your assessment.  However, it is important to be able to explain how you came to decisions.  If the decision in question has long-term consequences, it may be advisable to seek support with a formal assessment or diagnosis before making the decision.  Examples of these decisions are the person needing an operation, selling their home/moving home or giving up their tenancy.

.................

2.13    For a legal transaction (for example, making a will), a solicitor or legal practitioner should assess the client's capacity to make the decision to instruct them.  If they are unsure whether there is an impairment or disturbance in the mind or brain, they should seek an opinion from a registered professional. 

2.14    Professional opinion on the person's capacity can be sought.  This could be, for example, from a psychiatrist, psychologist, a speech and language therapist, occupational therapist or social worker.  However, whilst such professional opinion may contribute to the outcome, the final decision about a person's capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity.

...................

2.17    The terms functional, diagnostic and causative nexus do not appear in the Law although they are sometimes used in professional communication.  However, the use of the term 'diagnostic' does not mean that only health professionals are capable of conducting capacity assessments.  Capacity assessments can be undertaken by anyone in relation to a person's decision-making ability.

....................

2.52    The Law does not specify who should assess capacity.  This is deliberate as anyone can undertake a capacity assessment.  The person carrying out the act or treatment is the decision-maker and should undertake the capacity assessment.  They must be satisfied that the person cannot make the decision because of an impairment or disturbance in the functioning of the mind or brain."

28.      This is also the position in England and Wales where the relevant provisions of the Mental Capacity Act 2005 ("the Act") are, for all practical purposes, in identical terms to the relevant articles of the Law.  Thus Section 15 of the Act is equivalent to Article 24 and Sections 1 - 3 of the Act are equivalent to Article 3 - 5.   

29.      In re Collis (Court of Protection, 27 October 2010) the court had to determine whether Mr Collis had capacity to grant a lasting power of attorney.  The lawyer who witnessed the execution of the power of attorney said that he did whereas a doctor, who considered the matter after the event, was of the opinion that he would not have had capacity at the time.  The court preferred the evidence of the solicitor and said this on page 3 of the judgment:

"I accept that it may seem unusual for the court to prefer the evidence of a solicitor to that of an experienced medical practitioner on what prima facie seems to be a clinical decision.  This is not without precedent, and in Birkin v Wing (1890) 63 LT 80, for example, the judge preferred the evidence of a solicitor, who considered that his client was mentally capable of entering into a particular contract, to that of a doctor who said that he lacked capacity."

30.      In Hinduja -v- Hinduja [2020] EWHC 1533 (Ch), the High Court was concerned with whether to appoint the claimant's daughter as his litigation friend on the ground that the claimant lacked capacity to conduct the proceedings himself.  The test for capacity in relation to the appointment of a litigation friend was that set out in the Act.  There was no medical evidence before the court, only evidence from the daughter.  Falk J held that, whilst medical evidence would normally be provided, there was no requirement for it and she held that the claimant lacked capacity to conduct the proceedings and accordingly appointed a litigation friend. 

31.      Advocate Meiklejohn, in his helpful written and oral submissions on behalf of the Attorney General, agreed that there was no requirement for the Court to have a report from a medical practitioner before determining whether a person lacks capacity and whether to appoint a delegate. 

32.      We agree.  However, we would not wish our decision to be misunderstood.  We have no doubt that, in the ordinary case, the Court would still normally expect to receive a report from a medical practitioner on the issue of capacity and, in particular, on the issue of whether any such lack of capacity is because of an impairment or disturbance in the functioning of the mind or brain.   

33.      But in this case we are satisfied that it is not practical to obtain a report.  C has refused to give details of her general practitioner or his or her medical practice and it has not proved possible to discover this information; nor has it proved possible to obtain a report from some other medical practitioner.    

34.      Furthermore, this is not a case where C's capacity in general is in doubt.  There is no suggestion that she lacks capacity to take decisions in relation to her daily life; the alleged lack of capacity is limited to issues relating to the légitime claim and the Trust.  In those circumstances, in the absence of a report from a general practitioner who has known her for many years, it is not clear whether a new and different medical practitioner who has no previous knowledge of her, would be in a better position than the lawyers who have been acting for her since 2017 to assess her capacity in relation to the particular legal decisions which now confront her.   

35.      In all the circumstances, although we would have preferred to have had the benefit of a report from a medical practitioner and took steps to try and obtain such a report, we were nevertheless content to proceed without one. 

The assessment

36.      We were provided with a letter dated 2nd May 2006 from the Eating Disorder Team ("the Team") at the Health and Social Services Department following the discharge of C from their care.  It is clear that C had suffered from anorexia for approximately 11 years, with chaotic eating, bingeing and vomiting behaviour.  She was given access to various experts in England and in Jersey after she first attended in 1994.  It would appear that she was detained under the applicable mental health legislation in Jersey or in England on some three occasions and on other occasions she attended hospital as a voluntary patient.  Despite the efforts of the Team, she declined repeated attempts to engage in treatment and, although she gained weight during her periods of detention, no other tangible clinical gains were observed.   

37.      The Team were of the view that she did not lack capacity and that her only chance of recovery was to take responsibility for her own well-being.  They concluded that the periods of detention were not helping.  She was therefore discharged from their care in March 2006.  Following that discharge, it appears that there were a number of calls from concerned members of the public as a result of C's behaviour, but the Team were unable to assist further in view of her lack of engagement in any treatment.  The Team emphasised that they were willing to help if she got in touch in future, but it was clear they felt that there was nothing further they could do at that time.   

38.      Mr Bidmead carried out a capacity assessment at the meeting on 24th October 2019.  He had in fact first met C when she came to Viberts in 2017 and he had referred her to the litigation department.  At that first meeting, C had discussed her previous mental health issues with Mr Bidmead and had affirmed that the abuse of her father had caused the onset of anorexia and she had had severe issues dealing with this when she was young.      

39.      At the meeting in October 2019, he assessed her by reference to the factors set out in Article 5 for determining whether a person is unable to make a decision.  As to sub-paragraph (1)(a), namely understanding information relevant to the decision, he concluded that she did not appear to understand the information provided.  He said that after explaining to C about the current progress of her matter, they discussed the decisions to be made.  When asked if she understood, C would often respond with "I understand" or "Yeah, I know that".  However, when asked to explain the matter back to him and Advocate Hall, C would make an excuse such as "I do not remember" or "It's all very complicated".  C also appeared unable to appreciate the consequences of failing to make a decision, for example that her légitime claim would be dismissed.  C was unable to answer when the question was put simply as to whether she would prefer a large sum of money now or potentially a good income in the future.    

40.      As to Article 5(1)(b), namely the ability to retain information for a period sufficient to make the decision, Mr Bidmead concluded that C may have issues with retaining such information.  C would often say "I do not remember" in response to questions regarding matters that had either just been discussed or been discussed with her at length in the past.  However, Mr Bidmead was of the view that this was perhaps an excuse to hide the fact that she did not really understand rather than being a genuine inability to retain information.  He considered that C could retain information for long enough to make decisions regarding her claim.   

41.      As to Article 5(1)(c), namely the ability to use or weigh information in making the decision, he concluded that she was unable to do this.  He said that C was not able to come up with any good reasons for or against the options available to her, other than that she thought the Trust was her father's way of continuing to control her.  She was not able to separate the bad family history with her father from the financial factors relating to her decision.  She was also not able to comprehend the advantages of having more capital or more income.  When they discussed the need for a delegate, Mr Bidmead and Advocate Hall suggested other alternatives such as a lasting power of attorney or a litigation friend.  C was unable or unwilling to consider the advantages of these courses of action and how they would affect her decision making.  After the matter was explained to her, she was still unable to explain the differences between a lasting power of attorney and a delegation and which course of action she would prefer.  She said she found the questions "funny" as it was her father that was "crazy" not her.  C has in the past expressed the view that she would like to buy a flat with the proceeds and she was able to comprehend that the value of the légitime claim was insufficient for her to do this; but she was unable to consider whether other options might mean that this was still achievable, even when this was explained as simply as possible.    

42.      Mr Bidmead concluded that C was simply unable to make a decision in relation to the légitime claim and the Trust and he inferred that, given her previous mental history, this was because she was suffering from an impairment or disturbance in the functioning of her mind or brain.   

Decision

43.      This is not a case where there is any question about C's capacity to make decisions other than the decision in relation to the légitime claim and the Trust.  There is no suggestion that she lacks capacity in relation to decisions necessary for her day to day living.  We must therefore apply the provisions of the Law solely in respect of this particular decision.   

44.      We remind ourselves of the terms of Articles 3-5 of the Law and have considered each of the requirements in those Articles.  In relation to Article 3(1)(b), we are satisfied that all practical steps have been taken to enable C to make the decision but that these have not been successful.  It is clear that Viberts have made repeated attempts to obtain instructions from her but she has been unable to come to a decision as to how she wishes to proceed.   

45.      As to Article 3(1)(b)(ii), we are satisfied that this is not a case simply of C making an unwise decision.  It is clear that there is a complete inability on her part to make any decision, even though the dangers of making no decision have been pointed out to her.    

46.      The key issue for us is that contained in Article 4, namely are we satisfied on the balance of probabilities that C is unable to make her own decision in relation to the légitime claim and the Trust and that this is because she suffers from an impairment or disturbance in the functioning of her mind or brain in relation to this particular matter.   

47.      The factors relevant to whether a person is unable to make a decision are those contained in Article 5.  Whilst, as Mr Bidmead states, there may be some question over whether she understands the information relevant to the decision which she has to make, the key factor in our judgment is that set out in Article 5(1)(c), namely that she cannot use or weigh the information in making the decision.  She has been provided by Viberts with all the information necessary to make a decision, but she cannot weigh that information.  Her concern that the Trust is her father's way of continuing to control her is unrelated to the information with which she has been provided.    As Article 5(2) makes clear, information relevant to a decision includes information about the reasonably foreseeable consequences of, inter alia, failing to make the decision.  The foreseeable consequences to her of failing to make a decision are serious.  The légitime claim will in due course be struck out for lack of progress if she fails to give instructions to progress that claim; and if she fails to take a decision to engage with the trustees, it is unlikely that any funds will be forthcoming from the Trust.  In those circumstances, she would be left in her current financial position when, either through pursuit of the légitime claim or through reaching an accommodation with the trustees, there are funds available to significantly improve her financial position, her accommodation and her general standard of living.  We are satisfied that she is unable to use or weigh the information about the consequences of failing to make a decision in relation to the légitime claim and the Trust.    

48.      We are also satisfied that the requirements of Article 6 are met in that Viberts are acting in the best interests of C and she has been encouraged and supported to participate as fully as possible in the decision which is required.    

49.      Having concluded that C is unable to make her own decision in relation to the légitime claim and the Trust in accordance with Article 4(1)(a), we must go on to consider whether this is because she suffers from an impairment or disturbance in the functioning of her mind or brain.  This is the most difficult aspect of this case, which we have not found easy.  However, given her previous history of mental difficulties, the serious adverse consequences which will follow from a continued failure on her part to take a decision and the irrationality of her reason for not taking a decision by refence to her father's continued control over her, we find on the balance of probabilities that her inability to take a decision in relation to the légitime claim and the Trust is because she suffers from an impairment or a disturbance in the functioning of her mind or brain in relation to this particular matter.    

50.      In reaching this decision, we were assisted by Advocate Meiklejohn's submission on behalf of the Attorney General as partie publique that, on the basis of the evidence before the Court, it was open to the Court to find that the requirements of Articles 3-5 of the Law were complied with and that C accordingly lacked capacity in relation to this particular matter, such that a delegate could be appointed.   

51.      We have also considered the point that Advocate Blomfield is in the same firm as Advocate Hall, who has responsibility for the litigation.  However, in the particular circumstance of this case, we consider that to be an advantage rather than a disadvantage.  As Advocate Meiklejohn said, Viberts have made enormous efforts to establish a relationship with C and have tried their very best to assist her.  We think that the introduction of a stranger from a different firm at this stage would be unhelpful in this case.    

52.      Having decided that a delegate should be appointed, we have had regard to Article 24(3) of the Law which provides that, in appointing a delegate, the Court must ensure that the scope and duration of the appointment are no greater than reasonably necessary having regard to all relevant circumstances. 

53.      As to the scope of the appointment, it is limited to making decisions relating to the légitime claim and the Trust.  It will not affect any other aspect of C's life.  As to the duration, we see no reason why Advocate Blomfield as delegate should not be able to address matters in fairly short order following her appointment.  She will be able to meet with the trustees and obtain full details of what benefits the trustees would be willing to provide for C in the event of her dropping the légitime claim.  Having ascertained this information and no doubt after discussion with C, a decision can then be taken as to which course of action to follow.  Once this decision has been taken, it seems to us that the requirement for a delegate is likely to fall away.  Accordingly, we ordered that the appointment of Advocate Blomfield should be for a period of six months and that at the expiration of that period, she should file a report with the Court detailing what has occurred over the period, including whether the légitime claim is proceeding or whether an arrangement has been reached with the trustees for C to benefit from the Trust. In the event of Advocate Blomfield being of the view that her appointment as delegate needs to be extended because matters have not been finalised prior to the expiry of the 6 month period, she would need to apply for an extension of  her appointment and the Court would need to be persuaded at that stage that there were proper grounds for doing so.   

Authorities

Capacity and Self-Determination (Jersey) Law 2016. 

Mental Health (Jersey) Law 1969. 

Mental Capacity Act 2005. 

Re: Collis (Court of Protection, 27th October 2010). 

Hinduja -v- Hinduja [2020] EWHC 1533 (Ch). 


Page Last Updated: 15 Mar 2021


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