Statutory wills, gifts & other applications

Our Court of Protection team is one of the most experienced in the country in advising deputies and attorneys on formal applications for gifts, wills and property transactions, such as applying to the Court for authority to replace a co-owner of a property who has lost capacity.

When should you make an application to the Court of Protection?

If you are acting as a Court of Protection deputy or have Power of Attorney for someone else, you may want to consider making important decisions on their behalf such as:

• Making a will
• Making a major lifetime gift
• Withdrawing a large one-off sum (e.g. for the purchase of a property)

The Court of Protection exists to safeguard the property and financial affairs, and the health and welfare of those who lack capacity to make decisions for themselves, and only the Court of Protection can authorise certain decisions. Many factors influence the Court’s decision and need to be taken into account when preparing an application: the interests of the person who lacks capacity is paramount, other people can be affected and may not agree to what is proposed, and complex issues of trust and tax law are often involved.

Is it possible for a person who lacks capacity to make a will?

Where a person lacks capacity to make a will, it is possible to apply to the Court of Protection for a Statutory Will to be made on their behalf. This is a will approved by the Court on behalf of a person who lacks capacity and will be made in their best interests. To apply for a Statutory Will, the applicant will need to supply medical evidence confirming lack of capacity to make a will. The application can be made by the deputy or attorney of the person who lacks capacity, a beneficiary under an existing will or intestacy, or a person for whom the person might be expected to provide.

It is important to remember that even if a person lacks capacity to manage their finances, it is possible they may have the capacity to make a will.

Can I find out if I am a beneficiary of a will of someone who has lost capacity?

A will is a confidential document regardless of whether the person, who has previously made the will, lacks mental capacity. A will does not become a public document until a person dies and a Grant of Probate is issued by the Probate Registry. However, a will can be disclosed if authorised by the Court of Protection. A will is not generally disclosed to a potential beneficiary unless it is in the context of Court of Protection proceedings, where parties are bound to respect its confidentiality.

How our Court of Protection lawyers can help with applications to the Court of Protection

We are able to assist deputies and attorneys by:

• Making applications for gifts, wills, and settlements
• Navigating the complexities of the Mental Capacity Act 2005 and Court of Protection Rules 2017
• Assisting with arrangements for assessment of capacity
• Preparing the Court of Protection forms
• Advising on applications or responding to applications
• Acting on behalf of someone who lacks capacity to conduct court proceedings (i.e. as their “litigation friend”)
• Making applications for the replacement of trustees who lack capacity, including where property is owned jointly.

Our Court of Protection expertise

• We have one of the largest specialist teams of Court of Protection lawyers, in the country, offering a rare combination of expertise and resources to deal with anything from a simple application to complex litigation
• We are highly regarded experts, with many years of experience between us and we often receive direct referrals from solicitors, barristers and other professionals. We are appointed as deputies in approximately 240 cases
• Our specialist Court of Protection lawyers give straightforward, practical advice and have the experience to ensure they secure the best possible outcome for the person in their later life
• We understand how the jurisdiction works. Where necessary, we work with leading barristers in this area and have been involved in some of the most difficult decisions made by the Court of Protection
• We have particular experience in dealing with Court of Protection issues for severely disabled clients (including people with brain injuries and birth injuries) and managing large personal injury or clinical negligence awards. We also manage the affairs of many elderly clients with dementia.