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Capacity & Court of Protection
CPD Points:
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Regulated by the Solicitors Regulation Authority:
Listen and pass the quiz: Gain 1 CPD point (60 minutes)
Listen only, gain ½ a CPD point (30 minutes)

Regulated by the Bar Standards Board:
Listen and pass the quiz: Gain 1 accredited CPD point (60 minutes)

Regulated by ILEX:
Listen and pass the quiz: Gain 1 CPD point (60 minutes)
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  • FREE
30 minutes of audio
(+ optional 5 minute online quiz)
Plays on Computer:
Yes Downloadable as MP3:    Yes
Course Aims:

This podcast aims to inform the listener of a number of recent decisions in the Court of Protection that continue to cast light on the court's powers to make decisions in the best interests of incapacitated persons. It will look at the court's power to make a statutory will for an incapacitated person and what principles are to be applied, a recent application of the rule in Parker v Feltgate and the factors applicable when setting a Deputy's security bond.

Consideration is also given to a Court's power to reverse a transaction putting property into trust on the basis of a unilateral mistake and lastly on the continued debate surrounding the nature of the representation sufficient to ground a proprietary estoppel and the status of Re Basham.

After completing the course you will:
  • Know the facts and relevance of cases such as Re P, Re M, Re Perrin and Re H in shaping the powers and approach taken in the Court of Protection to the best interests test.;
  • Know what factors are likely to be important when determining what is in a patient's best interest when drafting a statutory will;
  • Know what factors are likely to be important when setting a security bond for a court appointed Deputy;
  • Know the approach to be taken to testamentary dispositions where a client has sporadic or failing capacity.;
  • Be aware of the difficulties in delineating cases of 'mistakes as to effects' and 'mistakes as to consequences' under the Gibbon v Mitchell [2009]jurisdiction;
  • Know the issues that remain to be resolved following Thorner v Majors [2009], particularly the nature of what constitutes a 'representation';
  • Understand why uncertainty remains over the status of Re Basham.
Specialist Difficulty: 5 of 5
Case Update
Sources and References:
  • Mental Capacity Act 2005 s1-4;
  • s. 33 Trustee Act 1925;
  • Baker v H [2009] EWHC B31 (Fam);
  • Re M (also reported as ITW v Z) [2009] EWHC 2525);
  • Re P [2009] EWHC 163 (Ch);
  • Banks v Goodfellow [1870] LR 5 QB 549;
  • Parker v Felgate 1883 8 P.D.171;
  • Scammell & Anor v Farmer [2008] EWHC 1100 (Ch);
  • Perrins v Holland (2009) EWHC 1945 (Ch);
  • Gibbon v Mitchell [1990] 1 WLR 1304;
  • Thorner v Major and others [2009] UKHL 18;
  • Re Basham [1986] 1 WLR 1498;
  • McDonald v Frost [2009] EWHC 2276 (Ch);
  • Gill v RSPCA (unreported 2009);
  • Porntip Stallion v Albert Stallion Holdings (Great Britain) Ltd [2009] EWHC 1950 (Ch).;
  • Anker-Petersen v Christensen [2002]. WTLR 313;
  • Sieff v Fox [2005] EWHC 1312 (Ch);
  • AMP Plc v Barker [2001] Pens.L.R. 77;
  • Ogilvie v Littleboy, (1897) 13 T. L. R. 399;
  • Lady Hood of Avalon v Mackinnon [1909] 1 Ch. 476;
  • Betsam trust (2008) (unreported);
  • Clarkson v Barclays Private Bank &. Trust (Isle of Man) Ltd [2007] WTLR 1703;
  • Ogden v Trustees of the RHS Griffiths 2003 Settlement [2008] EWHC 118 (Ch).

In this podcast, Chancery barristers William East and Ruth Hughes discuss a number of recent cases from the Chancery Division. The podcast will address three main topics: the best interests test under the Mental Capacity Act 2005, the powers of the court to reverse a transaction on grounds of unilateral mistake and finally proprietary estoppel.

This podcast may be of interest to those in property or Chancery practice and practitioners interested in the property and affairs jurisdiction of the Court of Protection.

Podcast last reviewed: 2011-09-26

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