Court of Protection proceedings revolve around a Protected Person’s best interests.
Where a person lacks capacity the Court of Protection may be required to decide on a specific matter on behalf of the Protected Party and in doing so will consider all the available evidence. It is possible that the specific decision in question involves two persons lacking capacity, therefore requiring the Court of Protection to balance all Protected Party’s best interests, whilst managing any conflict arising.
In this instance, the Court of Protection may be faced with a difficult decision, particularly when the best interests of each person directly conflict with the other persons. Such conflict will have to be addressed and balanced by the Court in order to ensure each Protected Party’s best interests are being maintained equally. The recent case of MA (by her litigation friend the Official Solicitor) v A Local Authority and another; AA (by his litigation friend the Official Solicitor) v A Local Authority involved two Protected Party’s and demonstrates the Court’s application in balancing each Party’s best interests.
MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65
Background
This case concerned a husband and wife, MA and AA, both being diagnosed with dementia. Both MA and AA initially moved into the same care home and lived together in the same room. Over time MA’s needs developed and she was moved away from AA to another placement which could accommodate those needs. Contact between MA and AA was encouraged, initially remotely and then face to face, however problems arose which led to contact ceasing. Applications were made for the Court of Protection to consider AA remaining at his placement, following MA’s relocation, and whether contact between MA and AA should continue.
A potential move for AA was considered on the basis an alternative care home would allow AA to be closer to MA, albeit not in the same care home as this was not suitable for AA’s needs. Whilst AA would be closer, the matter of contact was a separate issue and the advantage of being closer would only be relevant if there was to be more regular contact, not something either party advocated for. The disadvantage to relocating AA was that he may become unsettled, and his current placement was appropriate, with AA having made many friends and being settled. This was in direct conflict to MA’s best interests as it was submitted MA may find some comfort in AA relocating as he would move away from J, a woman at AA’s placement in which her contact with AA had caused MA some distress.
In considering contact, it was agreed face to face contact was not a viable option due to the distress it caused both AA and MA, therefore removing an advantage to AA relocating. The alternative forms of contact available were: the exchange of letters and photographs; telephone contact and video contact. It was agreed the exchange of letters and photographs had limited effect as this would cause MA distress and AA was unable to comprehend who MA was. Telephone contact was also limited as neither party could recognise the other’s voice. This left video contact as an option however this now appears to cause MA distress and she refuses to engage. AA was also unable to recognise MA during video contact.
The Court’s decision
In considering the above the Court of Protection held it was not in the best interests to have contact at present. Further, it was not in AA’s best interests to relocate, not least because there was no vacancy at the suggested placement. Whilst the Court of Protection was required to balance the best interests of each party, there was very little conflict in this case and the party’s best interests mainly aligned. The main area of conflict revolved around AA’s placement however this would only allow MA minimal comfort in knowing AA was closer to her and away from J, whereas it could have caused significant interference with AA. For this reason, it was advised against a relocation, despite this not being an option due to lack of availability.
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Stuart Parris is an Associate in our expert Dispute Resolution team, specialising in inheritance and Court of Protection disputes.
If you require any advice on the above subjects, please contact Stuart or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.