Balancing act

Following a change in financial or personal circumstances or becoming 18, a priority for any deputy must be considering their client's testamentary arrangements. I suggest that, as is the case for all of us, executing a will on terms that accurately represent current circumstances and relationships would usually, although not always, be preferable to distribution in accordance with the rules of intestacy.

As with many people, it can quite often come as a surprise to a client's family to learn how their estate would be distributed under the rules of intestacy. This is especially the case in family circumstances where there are relatives, often a parent, who would benefit under intestacy, but have had little or no involvement in the client's life. We are appointed as deputy in a number of cases involving young children with cerebral palsy or an acquired brain injury, where these unfortunate circumstances have arisen.

Court rules require service of all the application papers on anyone who is materially or adversely affected by the application that has been submitted. However, in situations where, for example, one of the parents has left the home, this requirement could end up being destabilising for the child and their immediate family. If, for example, the client has received a large damages award subsequent to the family break-up, it would not be unusual for service of the application papers to disclose new information to the absent parent. This could act as a catalyst for them to return to their child's life, regardless of their or the family's wishes.

With these requirements in mind, we have found ourselves involved in an increasing number of situations where the family ask that service be dispensed with on the absent parent or, at the very least, that redacted papers be served.

In this context, I recently submitted an application on behalf of a client for whom we act as deputy, requesting that service be dispensed with on their biological, but absent, father. All contact with him had ceased when our client was approximately four years old. They are now 19. The subject of service was heard as a preliminary issue by the court, but our application for permission to dispense with service was not allowed.

One striking point from the judgment was that the decision was considered not to be one of best interests pursuant to sections 1(5) and 4 of the Mental Capacity Act because it was deemed that it would not be a decision made "for or on behalf of P". Rather, it was considered that the issue was one of procedure, and of interpreting rule 3(1) of the Court of Protection Rules - the overriding objective of enabling the court to deal with a case justly.

'Unqualified right'

In seeking to act justly, the court gave significant weight to the father's "unqualified right" to test the historical account put before the court in the substantive application. This right would only be interrupted if there were circumstances so exceptional or sufficiently compelling to justify it as part of a fair hearing under article 6 of the Human Rights Act. More weight was given to article 6 than to the potential interference with the client's article 8 right to a family life.

While each decision of whether to dispense with service will be fact- and circumstance-specific, it seems that the threshold and evidential burden on the applicant to justify an interference with an individual's right to a fair hearing is a high one. It was suggested that filing independent corroborative evidence, for example criminal convictions, Cafcass reports, may strengthen an application. However, it may be timely and costly to adduce this, and there is no guarantee that the court would accept that the evidence justifies an interference with the article 6 right.

Striking a balance between the client's rights and interests and a respondent's rights will always be delicate for the court. I only hope that clients' families are not discouraged from addressing the issue of testamentary arrangements by the possibility of having to provide an absent relative with all the details of their financial circumstances.

Brian Bacon is a partner at Thomson Snell and Passmore

He writes a regular Court of Protection blog for Private Client Adviser