When making decisions about the property and welfare of a person lacking mental capacity the overarching principle pursuant to the Mental Capacity Act 2005 is that any decision made on behalf of that person must be made in his best interests.
The case of Re P [2009] shows that guidance given under the Mental Capacity Acts 1959 and 1983 about the making of settlements or Wills could no longer be directly applied to a decision
made under the 2005 Act.
Judge Lewison sitting in the Court of Protection directed that a statutory Will be executed on behalf of a tenant in possession who lacked mental capacity.
He stated that the court had power under the 2005 Act to order the execution of a Will dealing with immoveable property situated in England and Wales irrespective of a patients domicile. When making decisions about the property and welfare of persons lacking capacity the overarching principle must be applied. This approach is not the same inquiring what the patient would have decided if he had had the capacity, namely the “substituted judgement” approach.
