The Court of Protection can make decisions for people who do not have the mental capacity to make choices themselves. This includes decisions about what will happen when that person dies. We can help you to apply to the Court of Protection, whether that is to make a statutory Will, to be appointed as a person’s deputy or in relation to a one-off decision for someone who does not have capacity.
Where a person has lost the capacity to make a new Will (e.g. if they have dementia or they have had a serious brain injury), you can apply to the Court of Protection to have one made for them. The Court of Protection will consider:
- what the person would do if they had the capacity to make their own Will;
- the person’s beliefs and personal values; and
- how the person acted and made decisions in the past.
Cases in which it might make a statutory Will include where the proposed statutory Will saves tax. It is often the person’s deputy or attorney who makes an application for a statutory Will, but others can apply too.
Deputies and attorneys
The Court of Protection is also responsible for individuals who make decisions on behalf of someone else:
You can apply to the Court of Protection to be appointed as a “deputy” for a person who lacks mental capacity. Deputies can make ongoing, day-to-day decisions for that person.
- Attorneys (appointed under a Lasting Power of Attorney or an Enduring Power of Attorney)
Anyone over 18 can make a Lasting Power of Attorney (or “LPA”) as long as they have the necessary mental capacity when they make it. An LPA is a way to appoint one or more people (known as “attorneys”) to make decisions on your behalf when you are unable to do so.
If a deputy or an attorney wants or needs to make a one-off decision that is outside of their normal power (for example, to sell the person’s property or make a large gift on their behalf), they must apply to the Court of Protection.
What can I do if I am concerned about wrongdoing by a deputy or an attorney?
It is usually sensible to contact the Office of the Public Guardian with details of your concerns. This is something that you may wish to do yourself. Alternatively, we can advise you in relation to any or all of the following:
- the rights, duties and obligations of the attorney or deputy in question (these are not always the same);
- whether the attorney or deputy has acted wrongfully from a legal perspective; and
- putting together your concerns for the Office of the Public Guardian to consider.
Please contact us if you are interested in discussing these options with a member of our team.