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:

1. •

   P must be assumed to have capacity unless it is established that P lacks capacity

2. •

   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

3. •

   P is not to be treated as unable to make a decision merely because P makes an unwise decision

4. •

   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

5. •

   before...