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Sometimes, a will needs to be made on behalf of someone who does not have the mental capacity to make one for themselves. Elderly parents may have lost the mental capacity to understand and manage their own affairs because they have a progressively degenerative condition such as Alzheimer's disease or dementia. Younger people can also suffer the same decline in mental capacity if they've been involved in an accident that resulted in a serious brain injury or they may have suffered a birth injury such as cerebral palsy which has diminished their metal capacity from an early age.
If you are not sure whether the person lacks the capacity to make a will, you shouldn't just go ahead and take them to a solicitor to get a will made anyway. Any decent solicitor would probably refuse to make the will in any event because before solicitors can draw up this important legal document they are professionally and legally obliged to obtain evidence concerning mental capacity and to confirm that the testator understands all the implications of what they are about to do. Even if you could get a will made (either through a lawyer or using a DIY will pack) it may not be valid upon death and could be contested by others on the grounds of lack of testamentary capacity. However the person's mental capacity became impaired, through disease or injury, if they demonstrably do not understand the principles behind making a will and lack the understanding required to be able to make a will on their own, an application can be made to the Court of Protection for what's known as a statutory will to be drafted and approved on their behalf.
The Court of Protection is a special section of the court which deals with applications relating to anyone who does not have the mental capacity to manage their own affairs. It works alongside the Office of the Public Guardian (OPG) which was set up to oversee the general management of the affairs of people lacking capacity. The function of both these bodies is to ensure that the affairs of anyone lacking mental capacity are handled properly and that no-one takes advantage of any individual whose mental capacity is injured or impaired in any way.
If the unfortunate person who has lost capacity had the foresight to make a Lasting Power of Attorney (LPA) which has been registered with the Office of the Public Guardian, those appointed as attorneys can step in and make a submission to the Court of Protection to have a statutory will drawn up and approved. However, sometimes a person fails or just forgets to appoint an attorney before they lose capacity or perhaps the appointed attorney is no longer able or willing to act on their behalf. In these circumstances, a deputy is usually appointed by the court. Anyone can be a deputy: a friend or family member of the person lacking capacity, but more frequently it's a professional person like a solicitor or lawyer. Most law firms have partners who regularly act as professional deputies for clients.
A deputy performs a very similar role to an attorney, but rather than being the choice of the donor (the person making the LPA), deputies are appointed by the Court of Protection to manage either the property and affairs (i.e. finances) and/or health and welfare matters (i.e. decisions about where to live, what medical treatment to receive) of someone who lacks capacity. Unlike attorneys, whose actions and behaviour once they are appointed are not monitored by anyone (unless a specific complaint about them has been made) the actions of court-appointed deputies are regularly scrutinised by the Office of the Public Guardian. Deputies are usually also required to complete a return for the OPG every year explaining how they have spent the money of the person lacking capacity and what decisions they took on that person's behalf.
You don't need to be an attorney or deputy to apply to the Court of Protection to get agreement on a new statutory will. Things are certainly simplified if you are an attorney or deputy. There can be no debate about lack of mental capacity if you are making such an application as an attorney or an appointed deputy - by definition you would not be acting in that capacity were that not the case.
However, anyone who was a beneficiary under an existing will is also entitled to make such an application – although they would have the additional burden of having to prove lack of mental capacity before things could proceed any further.
The application should set out all the financial circumstances of the impaired person as well as the arrangements currently made for their care and should explain who forms part of their family and what the nature of those relationships might be. This detailed information allows the court to build a picture of those people who might expect to inherit something in the event of the person's death. A draft of the proposed will setting out how the estate will be divided in the event of the person's death may also be provided to the court.
Once the application is made to court, the judge will appoint the Official Solicitor to look at the application from a completely independent perspective and make any representations to court thought necessary in order for the will to be fair to everybody involved. Those who could be prejudiced or affected in any way by the new will (e.g. anyone who was a beneficiary in a previous will but is cut out of the new one) are parties to the hearing and have a chance to make representations.
However, 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 parties must abide by that decision.
Once the will is approved by the court, an order is then be made allowing the applicant to sign the will on behalf of the person lacking capacity. The court then seals 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 professional legal advice.
Any subsequent application for alterations to an approved statutory will would have to show that such a change was in the mentally impaired person's best interests. The evidence about why the existing document should be changed would have to be very persuasive indeed before a judge would consider altering a statutory will. The process is as complicated as it sounds and with a typical application costing anything up to £4,000, it's always best to get a solicitor involved so you can be certain everything has been done correctly.
Talk to us about issues of capacity if you're not certain about definitions or whether they may apply in your circumstances. We can explain what lack of capacity means in more detail so that you can decide whether it is an issue or not. If you think that an elderly parent or relative should have a statutory will made or know of someone who might need the same service, give us a call for a no obligation chat on 03700 868 686 or contact us online. We can talk you through the options and whether we think that an application for a statutory will would be the right way forward.
If you’re looking for information regards contesting a will please follow the relevant link.