Under the Mental Capacity Act 2005 , when someone lacks mental capacity, their financial affairs may be subject to the control of the Court of Protection.
The person may be an adult or child and could lack capacity for many different reasons including through physical or mental illness, learning disability or brain damage following a road or other accident. When the Court makes a Statutory Will on behalf of an individual who lacks capacity it has the same effect as if that person had had the capacity to make a valid Will.
Why You Can't Just Make A "Normal" Will
If a person without capacity signs a Will it may well subsequently be challenged by others on the grounds of lack of testamentary capacity. If a person lacks the necessary understanding required to be able to make a Will on their own an application should be made to the Court of Protection for what is known as Statutory Will to be drafted and approved on their behalf.
The Court Of Protection
The Court of Protection is a special section of the Court which deals with applications relating to those persons who are not mentally capable of managing their own affairs. It works with the Office of the Public Guardian (OPG) which oversees the general management of the affairs of people lacking capacity. The function of these bodies is to ensure that the affairs of anyone that lacking mental capacity are handled properly.
Lasting Powers Of Attorneys And Deputies
If the person who has lost capacity had previously prepared a Lasting Power of Attorney which has been registered with the Office of the Public Guardian those appointed as Attorneys can apply to the Court to have a Statutory Will drawn up and approved. However sometimes a Lasting Power of Attorney is not prepared and in those circumstances the default procedure is for a Deputy to be appointed by the Court. It is often a member of the family or a friend of the person who lacks capacity.
The Role Of A Deputy
A Deputy performs a very similar role to an Attorney but rather than being the choice of the Donor Deputies are appointed by the Court of Protection to manage either finance and or health and welfare matters. Unlike Attorneys whose actions and behaviour once they are appointed are not monitored by anyone the Court appointed Deputies are specifically supervised by the Office of the Public Guardian.
Applying To The Court For A Statutory Will
An Attorney or Deputy can make an application for a Statutory Will. Also a Beneficiary under an existing Will is also entitled to make an application but would need to establish the incapacity of the person concerned. The application should set out all the financial circumstances of the impaired person as well as the arrangements currently made for their care, it should also explain who forms part of their family and the nature of the relationships. A full Doctors report is also required at the same time. This detailed information allows the Court to build a picture of the people who might be expected to inherit something in the event of the persons death. A draft of the proposed Will setting out how the estate will be divided in the event of the persons death will also be provided to the Court.
Approving A Statutory Will
Once the application is made to the Court the Judge will appoint the Official Solicitor to look at the application from a completely independent perspective and make the representations to the Court to sort the necessary in order for the Will to be fair to everybody concerned. Those who would be prejudiced or otherwise affected by the new Will can be parties to the hearing and have a chance to make representations. At the end of the day it is the Court that makes the final decision as to what the Will should say and what its provisions for inheritance should be and all the parties must abide by that decision. Once the Will is approved by the Court an order is then made allowing the applicant to sign the Will on behalf of the person lacking capacity. The Court can seal the Will with the official seal of the Court of Protection. The Will is now a legally valid and binding document as good as a Will made in any other way with proper legal advice. Any subsequent application for alterations to an approved statutory will would have to show such a change that was in the mentally incapacitated person’s best interests. The evidence of why the existing document should be changed would have to be very persuasive before a Judge would consider altering the statutory Will. The process involved in obtaining the Statutory Will can be complicated and a typical application costs anything up to £3000. This includes the cost of the Official Solicitors involved in the matter. If you need any further advice please contact Clarkson Wright and Jakes’ Estate Administration Department on 01689 887847 or email Jeremy.firstname.lastname@example.org .
What Is A Statutory Gift?
It is important that Attorneys and Deputies consider any estate planning which may be in the best interest of the person who lacks mental capacity to make decisions about such matters. It is important here to stress that an Attorney acting either under an Enduring Power of Attorney or a Lasting Power of Attorney has no right to make gifts of a Donor’s assets. Unless the Donor has the mental capacity to do this themselves an application must be made on their behalf to the Court of Protection. The Court will require full details of the financial circumstances of the impaired person, details of their family, a full medical report and detailed information about the Donor. If the Court considers that a gift will be desirable in all the circumstances and particularly bearing in mind possible future needs of the Donor, then a Court order can be given allowing the gift to be made. Any statutory gift being made will still be subject to the same inheritance tax rules namely the 7 year rule whereby if the Donor was to die within 7 years of the date of the statutory gift the asset will be bought back into his/her estate for inheritance tax purposes.