Court of Protection

Wills, Trusts and Probate

Court of Protection

There are times in our lives when matters are taken out of our control and a loved one lacks the mental capacity to be able to manage their own affairs. This can be due to many reasons, old age, mental illness, a severe learning disability, stroke, accident, or injury. If your loved one at that time has not made a Lasting Power of Attorney then, no one will legally be able to manage the day to day running of their affairs on their behalf. This includes making decisions on a person’s property and financial affairs and at times decisions regarding their health and welfare.

To be appointed to act on behalf of that person who now lacks mental capacity, you would need to make an application to the Court of Protection to be appointed as their deputy.
A deputy can be a family member, friend or professional and they have a duty to act in the person’s best interests by managing and protecting the assets of that person. The deputy can make decisions regarding the sale, letting or management of a person’s property. They can access the person’s money in their bank/savings account to pay their household bills and/or care fees, if required. They can also access their money to ensure the person has sufficient personal spending monies and purchase any necessary items they require, such as clothing.

The application process is quite lengthy (over several months) and there will be lots of information required for the initial application forms. An assessment of capacity is required by a professional in order to confirm to the Court whether the person does lack mental capacity to manage their own affairs.

It is important to note that if a jointly held property is required to be sold or transferred then a separate Court application will need to be made in order to appoint a trustee of the jointly held property to facilitate any sale or transfer. This is the case, even when the person has a Deputy already appointed on their behalf.

We, as a firm, can apply to be appointed as a professional deputy on behalf of the person who lacks capacity. We would then take on the day-to-day management of their property and financial affairs. This allows you to concentrate on providing them with the loving care and attention, without the stress and time consumed in the application and ongoing management.

Statutory Wills

A deputy cannot make a will for the person who lacks mental capacity, however they may identify that the person does not have one in place or that what they do have requires updating (for example, a beneficiary’s circumstances have changed, or the person requires Inheritance Tax planning) and they can make an application to the Court of Protection for a statutory will. The application for a statutory will can be made by either the Attorney under an Enduring or Lasting Power of Attorney or by a Deputy under an Order by the Court. It is a lengthy and comprehensive application that needs to be made and your likely to require assistance from a legal expert in this field.

The Court of Protection has specific authority, brought about by the Mental Capacity Act 2005 to make a Statutory Will on behalf of a person who lacks the required capacity themselves.

There may be several reasons why a Statutory Will is necessary for the person who lacks capacity, such as:-

  • Tax planning
  • A will has never been made before
  • Complex family circumstances
  • A gift in a previous will is no longer valid
  • Beneficiaries of a previous will have died and no further provisions have been made

There are basic requirements to be met before an application for a Statutory Will can be made. The person who lacks capacity must be:-

  • Over 18 years of age
  • Lacking testamentary capacity to make a will. This will need to be confirmed in an assessment carried out by a health care professional or someone so qualified to assess capacity
  • Domiciled in England or Wales. In general, this means that their permanent home is in either Country.

We understand that often these circumstances can arise unexpectedly we appreciate that whatever the circumstances it is likely to be a stressful and upsetting time for you. You can feel assured in knowing that our experts will support and guide you through the whole process. We are a friendly, approachable and sympathetic team with a wealth of knowledge in this area and we are ready to answer your questions and assist with any applications that need to be made.

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