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Neutral sanctuary – or intimidating location? Article by Justin Holmes

One aspect of the decision of Charles J in ADS v DSM [2017] EWCOP 8 is causing Court of Protection practitioners a headache as explored below by Justin Holmes.

Charles J criticised the parties, and a Court of Protection visitor, for interviewing P at the house of her son, where she lived, whilst her son or members of his immediate family were elsewhere in the property. He said that in view of the allegations of undue influence in the case she should have been taken to a “neutral venue” by somebody independent of the family and interviewed there.

Practitioners are concerned, however, that the reality for many people who have lost testamentary capacity is that they are already likely to be anxious and confused by simply having to meet a professional whom they don’t know, who then asks them to discuss what they would like to happen to their property after their deaths. Many don’t properly understand why they are being asked these questions at all. The result is often that the person being interviewed is either unwilling or unable to express meaningful wishes and feelings, and is also unable to back those expressions up with corroborative detail.