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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

15 DEC 2010


(Court of Protection; Macur J; 22 September 2010)

The vulnerable adult had epilepsy due to a brain injury at birth and had significant learning difficulties. She had rejected her mother to some extent, preferring to live with her aunt or in local authority accommodation. She lacked the capacity to litigate. The local authority sought a decision as to whether she lacked capacity to make day-to-day decisions concerning daily life. The mother argued that in the main she lacked capacity. If she had capacity to make such decisions, the authority sought to invoke inherent jurisdiction and asked the court to make a ‘best interests' declaration. The Official Solicitor argued that the use of inherent jurisdiction would subvert statutory scheme.

Inherent jurisdiction was available to supplement protection offered by the Mental Capacity Act 2005 but could not be used in cases of adults with capacity to impose a decision upon him/her as to welfare or finance. It was not established that this woman lacked capacity or that she was unable to recognise and withstand external pressure, or that she was likely to be subjected to physical constraint or behaviour impacting on her free will.


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