Lawyer continues will battle on behalf of islander without capacity

Tuesday 06 April 2021

A landmark Royal Court decision has seen a local lawyer appointed to act in the interests of an woman who was unable to make decisions about how to challenge the portion of money left to her in her late father’s will – despite there being no medical evidence supporting her lack of capacity.

The case involved a woman who felt that she had not been left her legitimate share in the will of her late father, and subsequently instructed Viberts.

Ms X had been estranged from her father at the time of his death, having allegedly suffered abuse at his hands, leaving her with mental health issues including severe anorexia, for which she had received medical help.

A légtime claim was issued by Viberts in November 2017, but they were later informed by trustees of the Trust established by her father than he had written a letter of wishes requesting that she did not benefit from the trust if she pursued legal action, apparently because he was concerned that her mental health would mean she would be unable to safely manage any large amount of money.

Following a court hearing, the trustees were urged to meet with her and determine the best way forward. As soon as Ms X was required to meet with them, she was said to have disengaged from Viberts and failed to provide them with instructions. The law firm repeatedly tried to contact her via letters, phone calls, texts and home visits, but all to no avail. She would always say she would “get back to them”, but never did.

In October 2019, she eventually met with Viberts lawyers. During that meeting, she explained that she was suffering financial strain, with her only income being benefits. She said her living situation was far from ideal, and that she wished to use any money she received to find better accommodation. The lawyers informed her that providing them with instructions on how to proceed on the will claim would enable her to receive the money she appeared to need.

She was provided various options for help – a delegate, capacity advocate or power of attorney – but refused to agree to any of them, despite being unable to tell Viberts how to proceed herself. 

As Ms X was unable to make important decisions relating to the conclusion of her case, meaning it was ultimately prevented from progressing and risked being struck out, the need for a delegation arose.

Following a hearing in the Royal Court this year, the decision made by the Court was to appoint Viberts’ Advocate Zoe Blomfield as delegate, as it was in the client’s best interests to do so. This followed a representation by Advocate Christina Hall. 

Pictured: Advocate Zoe Blomfield, who was appointed delegate.

The unusual feature of the case was that there was no medical report to support the suggestion that the client lacked capacity. Instead, the court relied on the evidence provided by Viberts’ staff together with historic evidence of the client’s previous medical health. 

The appointment, granted by the Royal Court, only allows the delegate power for limited issues and for a limited time, which is also a new feature of the Capacity Law.  

It subsequently agreed that not only was it not practical to obtain a report in the circumstances but that it was also not clear whether a medical practitioner with no previous knowledge of the client would be in a better position than Viberts’ staff, who have been acting for the client for some years, and felt able to assess her capacity in relation to her legal decisions. 

The Court did, however, state that they would prefer to see a medical report when it was possible to obtain one and acknowledged the effort undertaken by Viberts to assist the client and consider all the alternatives before making the delegate application.

The Court said in its judgment it did not find its decision "easy" to come to, but noted that, "given [Ms X's] previous history of mental difficulties, the serious adverse consequences which will follow from a continued failure on her part to take a decision and the irrationality of her reason for not taking a decision by reference to her father’s continued control over her, we find on the balance of probabilities that her inability to take a decision in relation to the légitime claim and the Trust is because she suffers from an impairment or a disturbance in the functioning of her mind or brain in relation to this particular matter."

Advocate Blomfield said following the judgment: “This was a very unusual case in difficult circumstances that were yet to be tested under the new legislation.

"I am very pleased that the Court has accepted our arguments and given us the opportunity to seek to protect our client’s best interests.

“This shows how the new capacity legislation is more flexible when it comes to capacity matters as well as emphasising the principle that the court should choose the least restrictive option possible for any person subject to a delegation.”