The High Court case of Bashir v Bashir suggests that, even if a person lacking capacity regains capacity during the relevant period, he cannot enter into a binding agreement to dispose of or deal with his property.
The claimant in the case sustained significant brain injuries as a result of an attack in 1993, leaving him unable to deal with his property and affairs. The defendant, his sister, was appointed as his deputy in 2008, misappropriated a large proportion of his compensation award and was subsequently removed as deputy. A charging order was placed against her property, however she claimed that the claimant had entered into an agreement to settle the matter for £140,000 in 2013, a sum significantly less than the value of the misappropriated funds.
The key issue was whether the claimant had capacity to enter into the agreement at the time it was made. In their judgement, the judge considered the issue of whether the claimant could enter into a binding agreement, even if he had regained capacity,
The High Court case of Bashir v Bashir suggests that, even if a person lacking capacity regains capacity during the relevant period, he cannot enter into a binding agreement to dispose of or deal with his property.
If a deputy is appointed. The judge referred to previous legislation under the Mental Health Act 1983 (MHA 1983), which stated that once a person had been placed under the jurisdiction of the Court of Protection, they could no longer make a valid lifetime disposition of their property as the property had passed out of their control. The judge concluded that, if deciding the issue based on the 1983 Act, the claimant could not therefore have entered into an agreement as a deputy was appointed to manage their affairs.
That said, the judge had failed to consider s20(1) of the Mental Capacity Act 2005 (MCA 2005), which states that a Deputy does not have authority to make decisions on behalf of the protected party in relation to a matter where he knows or has reasonable grounds for believing that the protected party has capacity in relation to that matter. Contrary to the 1983 Act, this means that under the MCA 2005 a Deputy must now give due consideration to whether a protected party has capacity to make their own decision on a particular issue, before making a decision on their behalf. In addition, all practicable steps to have to be taken to support a protected party to make a decision, where they have capacity to do so.
Whilst the judge concluded that, based on the evidence available, the claimant did in fact lack the capacity to enter into the agreement at the relevant time and so the issue of a deputyship appointment did not materially affect the outcome of the case, it is unfortunate that their wider consideration of the issue of capacity failed to take the principles of the MCA 2005 into account.
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