(i) Powers of the Court of Protection

Sometimes, where the mental condition is such that a person is incapable of managing his or her own property and affairs, the Court of Protection may make an order or appoint a deputy to make decisions on behalf of that person.14 Any gift made by the mentally incapacitated person once a deputy has been appointed will be void,15 whereas any contract which disposes of the person’s property and which was made without the authority of the court, does not bind the mentally incapacitated person, though it may be ratified by the court.16 Save where the transaction has been ratified, any property which was transferred or gift made may be recovered by the court or the deputy on behalf of the mentally incapacitated person.

(ii) Non Est Factum

In an extreme case where the claimant purports to sign a contract and the mental incapacity is such that he or she does not realize the nature of the document which he or she signing, the contract will be void on the ground of non est factum.17 Consequently, the claimant will be able to obtain restitution of benefits transferred to the defendant on the grounds of mistake or total failure of basis.

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