“Mum got ill and dad was long gone. She had nothing in place, it was a nightmare.”
When a person has lost capacity, but it is necessary to make a will, an application to the court of protection needs to be made – this is known as a Statutory Will. Applications for Statutory Wills are complex and often costly. For that reason, they must only be made if they are absolutely necessary, and if it can be demonstrated it is in the individual’s best interests.
When is a Statutory Will necessary?
• When the vulnerable person does not have a Will in place
• If there is a significant change to the value of the estate
• An existing Will is in place, but a beneficiary has passed away
Essentially the Court of Protection will most likely allow a statutory Will if the person who lacks capacity has never made a will, or if there has been a significant change in their circumstances.
What factors are considered?
The Court of Protection will assess every application on a case-by-case basis. It is very difficult to apply previous decisions to new cases as individual circumstances are complex.
The court will try to encourage the vulnerable individual to be involved whenever possible. There are factors listed in section 4 of the Mental Capacity Act 2005, such as:
- Past and present wishes and feelings of the vulnerable person including any relevant written statements made when they had capacity.
- The beliefs and values that would be likely to influence the vulnerable person’s decision if they had capacity.
- The other factors the vulnerable person would likely consider if they were able to do so.
The Court of Protection may also consider the views of those who are engaged in caring for the vulnerable person, along with the views of the attorney chosen by the vulnerable person, or the view of the deputy appointed for the vulnerable person by the court of protection
There are complicated and varying factors the court will consider when making its decision. There is no hierarchy attached to the various factors, it depends largely on the individual circumstances of the case. Ultimately, the court of protection must be convinced that authorising the execution of a Statutory Will is in the vulnerable person’s best interests.
If you are concerned about a vulnerable person, then please talk to our team. Our experience of the Court of Protection and Statutory Wills will help you when making a decision in this very complex situation.
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For help and advice on helping a family member you can talk to one of our team confidentially. You can call us on 0151 632 6699 or send us your details and we can contact you