Gifts for religious purposes, the Mental Capacity Act 2005 and the Court of Protection

To what extent can someone with serious mental health problems be permitted to make a large gift to a church? The issue came up recently in the Court of Protection in P, Re (capacity to tithe inheritance) [2014] EWHC B14 (COP), as follows.

The facts

MS (also known as ‘Mr S’ and ‘M’), aged 40, lives in supported accommodation. He has mental health problems: past diagnoses include bipolar affective disorder, schizophrenia and schizoaffective disorder. When the Mental Capacity Act 2005 [MCA] came into force, the relevant NHS Trust automatically became MS’s deputy for property and affairs; however, in 2011 a new court order appointed the relevant county council as his deputy in place of the NHS trust.

On a previous occasion in 2005 MS had given a tithe of his surplus property and capital of about £1,600 to his Church – the Church of Jesus Christ of Latter-day Saints. ‘He was “well” at the time’ and taking his prescribed medication [para 49]. Shortly before the present application, MS received £68,773 as a result of a capital and income distribution from a trust set up by his mother’s parents but inherited by him under his late father’s will. He wished to tithe that also. MS therefore sought declarations that he had capacity to litigate, to make a tithe in favour of the LDS, to manage his property and affairs and to execute a Lasting Power of Attorney [LPA] for Property and Affairs.

The role of the Court of Protection

At paras 52 to 63 of his judgment DJ Eldergill set out the role of the Court of Protection in such cases as follows:

  • The Court may make declarations as to whether a person has or lacks capacity to make a decision specified in the declaration: MCA], s15(1)(a)(b).
  • Everyone is presumed to have capacity unless and until it is established that he or she lacks capacity – which must be established on the balance of probabilities.
  • If a person lacks capacity to make a gift, the court may by order make the particular decision or decisions on the incapacitated person’s behalf: MCA 2005, s16(2)(a), s18(1)(b).
  • MCA 2005 – including, therefore, the capacity test set out in it – applies to proceedings in the Court of Protection.
  • For the purposes of the Act, a person lacks capacity in relation to a matter “if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.’
  • A person is unable to make a decision for his or her self if s/he is unable:
    • to understand the information relevant to the decision,
    • to retain that information,
    • to use or weigh that information as part of the process of making the decision, or
    • to communicate that decision (whether by talking, using sign language or any other means).
  • A person is not to be regarded as unable to understand the information relevant to a decision if s/he is able to understand an explanation of it in a way that is appropriate to the circumstances (using simple language, visual aids or any other means).
  • The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision.
  • A person is not to be treated as lacking capacity to make the decision(s) in question merely because s/he makes an unwise decision or proposes to do so. However, while a person cannot be found to lack capacity simply because his or her proposed decision is unconventional, irrational or unwise, an unwise or irrational decision may raise significant doubts and so trigger an assessment of that person’s capacity.
  • A person is not to be treated as lacking capacity to make the decision in question unless all practicable steps to help him or her to do so have been taken without success.

In short,

“… being ‘unable to decide’ does not mean literally that. Demonstrating incapacity involves establishing that the individual’s capacity to make the decision in question is in some way fundamentally compromised by the fact that the functioning of their mind or brain is impaired or disturbed. In other words, because of an impairment or disturbance of their mind or brain they are unable to understand, retain or weigh the information relevant to the decision, or are unable to communicate their decision. A link must be established” [para 62;


“Whether an individual has capacity may depend in part on the nature and complexity of the decisions to be made” [para 63].

The positions of the parties

  • MS wished to make a tithe of some £7,000 of the money inherited from his father’s estate.
  • MS’s mother, Mrs S, was “strongly opposed” to this [para 25].
  • The deputy (the local authority) submitted that making the tithe would mean that MS would need to claim state benefits some 56 weeks sooner than would otherwise be the case [para 30].

MS’s mental state

The court commissioned a report from one of its Special Visitors, a consultant psychiatrist. MS told the Special Visitor that he wanted to be a member of the Mormon Church but that currently the Church would not baptise him so he was not yet a full member: he declined to give the reasons for this. He pointed out that tithing was not unique to the Mormons but had good biblical precedents. He understood that tithing would decrease the value of his capital and hasten the time when he would be on state benefits [para 73]. The Special Visitor concluded that

  • MS had a schizoaffective disorder combined with an obsessive compulsive disorder;
  • he had a long-standing belief that he was a prophet, only next to the Trinity in status and powers;
  • he had no insight into his condition and felt that he had been abused by psychiatrists who did not understand or accept his true calling;
  • he did not have the capacity to litigate;
  • he did not have the capacity to manage his property and affairs.

The Special Visitor concluded, however, that MS did have the capacity to execute an LPA for Property and Affairs. As to his capacity to tithe, MS understood the process of tithing and its implications for his finances. His desire to give the money to the Mormon Church was part of his religious beliefs “but not …. part of his delusional belief system” [para 74]. On balance, therefore, the Special Visitor was of opinion that MS did have capacity to make a tithe to the LDS [para 74].

The decision

DJ Eldergill concluded that, on the balance of the evidence, MS did have an “impairment of, or a disturbance in the functioning of, the mind or brain” [para 89] but that “His desire to make this gift to his church is part of his religious beliefs but not … part of his delusional belief system” [para 93].

As to the general issue of tithing and MS’s mental capacity:

  • certain religions, including Christianity, Judaism and Islam, had regarded it as a religious duty for individuals to give money or produce to a religious body and it was once common to collect tithes for religious purposes, including the relief of the poor;
  • it was not significant whether or not MS was able to afford to tithe;
  • it was not necessarily significant whether all or most Christians now tithed or whether MS differed from his Church on one or more doctrinal matters;
  • his delusional belief that he was a prophet did not mean that all his religious beliefs were delusional or compromised by the presence of mental illness;
  • it might be significant that his tithing had commenced not long before his admission to hospital in 2005 “but the significance may be an interest in religious matters and a need for spiritual comfort which then developed a psychotic overlay” [para 106]; and
  • many of his religious beliefs were conventional: for example his belief that Jesus was the Son of God and that the Bible is a holy book.

As to tithing specifically:

“The fact that relatively few people now tithe is neither here nor there. Nor does it matter whether a person’s belief in tithing is a core belief required of members of a particular religion or a deviation and a matter of individual conscience [para 111]. It is not sufficient that other people think his proposed tithe is unwise, a misinterpretation of a religious text or is misguided by reference to their own secular beliefs and values” [para 112].

“The law has always sought to show due respect for liberty of conscience and religious belief and the European Convention on Human Rights reinforces this. Even if a person lacks capacity in law to make a religious gift, there remains the need to show respect for genuinely held beliefs and values. Good reasons are required to interfere in matters of conscience and spiritual belief. A person’s religion is no less real to them because some of their beliefs may be coloured by illness and their conscience is no less offended when they are not permitted to practise their religion. In MS’s case, both his conventional and unconventional religious beliefs are well-established and unlikely to change in time. This is not a situation where ambiguous beliefs are being reinforced or acted on precipitously, or it is likely that he will regret his tithe in the foreseeable future. His religion is now part of his life and is embedded in his existence. What he wishes is now his will. Even if his choice is founded on a belief that facts exist which do not, it is now his authentic voice and a true expression of his mind and the world within which he moves; and, like everyone, he needs to find peace” [para 125].


The fact that MS wishes to make his tithe to the Church of the Latter Day Saints rather than, say, the Church of England is irrelevant. It is not my function to interfere with people’s religious or political preferences and choices but where possible to give expression to their wishes and beliefs” [para 128: our emphasis].


Perhaps the key point is DJ Eldergill’s conclusion that the Court of Protection is not there to interfere with people’s religious or political preferences and choices but, where possible, to give expression to their wishes and beliefs. Like much that comes before the Court of Protection, it was a very difficult case on which to strike a balance. And would anyone have opposed MS’s wish to make the donation had it been two per cent rather than ten per cent? Or to make it to some other charity than the LDS: one of the mental health charities, perhaps, such as MIND?

As to the local authority’s point that the gift would mean that MS would claim state benefits earlier than would otherwise be the case, DJ Eldergill pointed out [para 31] that people with finite resources who give money to charity “are not required to calculate the effect of their gift on future state benefit claims or to regard themselves as precluded from acts of charity”. He did not regard the point as being of any assistance.

And had he taken a different view, that would presumably have been the beginning of the end of the widow’s mite…

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