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Neutral sanctuary – or intimidating location? 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.

This problem is only likely to be made worse by requiring P to travel with an independent person to a neutral location before the interview, particularly where P is also physically frail. Taking P out to a local hotel or office and interviewing her there may, in the worst case, limit P’s opportunity of expressing wishes or feelings, or possibly deny it altogether, which would be contrary to s. 4(4) of the Mental Capacity Act 2005.

Clearly, the ideal practice is to obtain evidence of P’s wishes and feelings in a manner designed to eliminate undue influence as far as possible, but there is a danger that in insisting on too many safeguards against undue influence P’s voice will not be heard as loudly or clearly as it should be.

Practitioners will have to think carefully and creatively about how best to interview people in these situations, perhaps trying interviews in different places to see whether the answers which they are given differ from place to place.