When a person cannot manage their own affairs due to mental incapacity, the Court of Protection (COP) will appoint a deputy to do so on their behalf.
The duty of the deputy is to manage the person’s affairs in their best interests.
Recently, a deputy for a man with dementia was placed in an awkward position when a person claiming to be the daughter of the man demanded a DNA test be carried out to determine the issue of her paternity. As such a test would require a sample to be taken, the deputy sought a court ruling on whether or not this could be said to be in the man’s best interests. There was no prior case offering a precedent on this question.
In the High Court, family judge Sir Nicholas Wall considered the issue and concluded that the Court did have the power to consent to a sample being taken from a person lacking mental capacity, despite the absence of any specific authority to do so within the Mental Capacity Act 2005.
Whether or not the order would be made would depend on the circumstances of the case. Although the judge considered that an application could also be made under the Family Law Act 1986, the hearing would involve the same people and a judge with COP jurisdiction, so in practice the result would be the same.
Accordingly, the sample could be taken.
Partner Note
LG v DK [2011] All ER (D) 31 October.