Decision making in respect of property and affairs

The Court of Protection (the court) is permitted to make decisions in respect of the property and affairs of a protected person (P) by section 16 of the Mental Capacity Act 2005 (MCA 2005). Common applications include applications to buy, sell and lease property, applications to make gifts and settle property and applications authorising the deputy to sign a statutory Will on behalf of P.

When making decisions in respect of P’s property and affairs, the decision maker must first consider the principles set out in MCA 2005, s 1, namely:

•
P must be assumed to have capacity unless it is established that P lacks capacity
•
P is not to be treated as unable to make a decision unless all practicable steps to help P to do so have been taken without success
•
P is not to be treated as unable to make a decision merely because P makes an unwise decision
•
an act done, or decision made, under MCA 2005 for or on behalf of P must be done, or made, in P’s best interests
•
before

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

TAKE A FREE TRIAL

Latest Private Client News

Question of the week: Where a trust of a life policy otherwise falls within the definition of an 'excluded trust' set out in paragraph 4 of Schedule 3A of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, does it lose that excluded trust status if it opens a non-interest bearing bank account in order to pay insurance premiums for the policy?

This Q&A considers whether a trust of a life policy, which otherwise falls within the definition of an 'excluded trust' as set out in the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, Sch 3A, para 4 loses its excluded trust status if it opens a non-interest bearing bank account to pay insurance premiums for the policy.

Tax update spring 2025—Tax analysis

Tax analysis: On 28 April 2025, the government announced a package of technical tax policy proposals aimed at simplifying and reforming the tax system and improving tax administration. These announcements included the publication of draft legislation, new consultations, various technical papers and responses to consultations, as well as updates on previously announced measures together with new initiatives.

Sizeable refunds could follow taxpayer’s FTT win as HMRC directed to issue enquiry closure notices in ten-year dispute (Refinitiv Ltd v HMRC)

Tax analysis: In Refinitiv Ltd v HMRC, the First-tier Tax Tribunal (FTT) directed that HMRC issue closure notices in respect of enquiries into 2018 corporation tax returns, averring that it had not met the burden of proof required for the enquiries to be kept open.

High Court makes order regarding funeral arrangements where two executors disagree (Patel v Patel)

Private Client analysis: The High Court has resolved a dispute between two executors over the funeral arrangements for their father, a devout Hindu. In a sensible and sensitive decision which reviewed and applied settled principles, the judge (HHJ Paul Matthews) considered the various factors which favoured cremation in England over burial in India. These included the wishes of the deceased, the views of his family, the strength of his connections to the UK and India, and practicalities such as cost and delay. While the relevant factors and their relative weight will inevitably be fact-sensitive, similar factors are likely to recur in many such cases. What is clear is that no single factor (in particular, the deceased’s own wishes) will necessarily be conclusive, so that the court must weigh all relevant factors with care. Written by Kyle Bonnell, barrister at XXIV Old Buildings.