If someone loses mental capacity, it is still possible for a Will to be made by the Court of Protection on their behalf. The Court of Protection is only likely to create a Will on their behalf if either:
They have never made a Will before
There has been such a significant change in their circumstances that they would have altered their Will or made a new one if they had been able to do so.
The Court of Protection has to act in the best interests of the person it is creating a Will for. It must consider these factors when deciding on the provisions of the Will:
Evidence of their past, present and future wishes
Their beliefs and values
Oher factors they would consider if able to do so.
Making an application
If someone has lost the capacity to make a Will for themselves, an application for a Statutory Will needs to be made on their behalf to the Court of Protection. The application is usually made by:
An attorney acting under a Lasting or Enduring power of attorney
Anyone who benefits from an existing Will
Anyone who you might expect to be provided for in a Will, typically dependants or those entitled under intestacy.
The application is submitted with supporting information which includes:
Reports and evidence on the individual's testamentary capacity
A copy of the proposed Will
Details of the individual’s family
A schedule of their assets
A supporting statement explaining why they may have been expected to create a Will in the suggested way.
Appointment of a Deputy
If you know someone who is unable to make decisions for themselves due a lack of mental capacity, you can apply to the Court of Protection to be appointed to act as their Deputy. P
The Court of Protection authorises Deputies to make decisions on their behalf, in relation to property and financial affairs, or personal welfare, or both.
To act as a Deputy for someone you must be 18 or over, and approved by the Court of Protection. Typically, deputies are close relatives or friends of the person who needs help making decisions.
It is also possible to pay someone to act as a deputy. If no-one else is available, the Court of Protection may appoint a specialist from a reputable law firm or charity.
Considerations
The Court of Protection procedure is very complex, lengthy and costly and should not be viewed as an alternative to making a Lasting Power of Attorney.
The continuing reporting obligations on Deputies are very onerous. Insurance must be kept in place and often regular tax, financial and legal advice is required to be taken by the Deputy even after the order is in place.