WLR and another v WLT and another

P, aged 84 and suffering from severe Alzheimer's disease, had built up substantial wealth with her late husband L, mainly through property held personally and through family companies. It was not disputed that she could no longer manage her affairs. L died on 15 February 2021. Of their four children, the dispute was mainly between a son, T, and a daughter, J, who had worked in the family business and was closer to P, while T was closer to L in his last years and had an estranged relationship with P. Each accused the other of acting against the parents' interests: J pointed to large withdrawals from L and P's joint accounts in November 2020 that she said T knew of, while T said the withdrawals were meant to stop J taking control of the family assets and accused J of isolating P.

Four applications under the Mental Capacity Act were heard together in Originating Summonses (Mental Capacity Act) Nos 2, 3, 4 and 5 of 2022. J applied to be appointed deputy for P together with a professional deputy, Ms Low. Another son, W, a pastor, applied to be appointed jointly with them. T applied for an independent professional deputy, Mr Lau Chin Huat, an accountant, to be sole deputy. T also applied to revoke P's lasting power of attorney (LPA), executed on 10 January 2019, which named L and J as donees, on the ground that she lacked capacity when she made it.

1. Whether J, W, Ms Low or Mr Lau should be appointed as deputy over P's personal welfare and property and affairs.
2. Whether the court could appoint the deputy to the board of a family company.
3. Whether a handwritten amendment to the LPA form was a ground to revoke it.
4. Whether P had mental capacity when she executed the LPA on 10 January 2019.

On the deputyship, the court noted that J and T distrusted each other and made mirror-image allegations of undue influence over the parents, matters better left to the separate probate dispute. What was not disputed was that J had been looking after P's well-being, which was the most important consideration and reason enough for her to continue. She could also act as a counterweight to T, while appointing a deputy put forward by T, who might have a conflict of interest, was not in P's interests. But J also needed a check, and W was sufficiently neutral to serve jointly with her. Adding Ms Low would be excessive.

On the directorship, the power under s 23(1)(d) of the MCA to carry on a business on P's behalf did not extend to placing the deputy on a company's board. The general powers were enough, and J could bring proceedings for P as a shareholder under s 23(1)(p) if directors breached their duties.

On the irregularity, the words all of had been handwritten into the clause restricting the donee from dealing with P's residential property, so that her many residential properties did not have to be listed. No provision of the Act made this a ground for revocation, the Office of the Public Guardian treated the registered LPA as valid, and the amendment was not material enough.

On capacity, a doctor who saw P on 7 December 2018 and again on the day the LPA was signed found significant cognitive decline: she could not state her age or recall basic facts, and in his opinion was unfit to make a will or an LPA. He certified L that day but not P. J relied on later reports showing P fully lost capacity by 18 December 2020, but those did not show she had capacity in January 2019, and the doctor's evidence was not rebutted. The presumption of capacity was therefore displaced. The court did not need to decide T's complaints about P's care.

The court appointed J and W as deputies over P's personal welfare and property and affairs, to act jointly in all matters with the general powers of deputies, rather than J with Ms Low. It made no order on J's prayer to be appointed a director of a family company or on W's prayer for reimbursement of his personal legal expenses. T's application for Mr Lau to be deputy was dismissed. T's application on the LPA was granted: the court found P lacked capacity on 10 January 2019, declared the LPA invalid and set it aside. Costs were left to be agreed or heard later.