Can the courts make a will for someone who doesn’t have mental capacity?

Posted on By Joanna Pegum
elderly man in snow

In England and Wales, the Court of Protection has the power to make a decision on a person’s behalf regarding their property and affairs, if they lack the capacity to do so (using the test for capacity set out in the Mental Capacity Act 2005).

The Mental Capacity Act expressly states that the Court of Protection can order that a will (or codicil) can be executed on behalf of a person lacking capacity. This is known as a ‘statutory will’. While the court has this power, no-one else does, so that a will executed by a person’s attorney or deputy without the court’s approval will not be valid.

When is it appropriate to ask the court to make a will on somebody’s behalf?

There are a number of circumstances where this would be necessary or desirable; for example:

  • Where someone has not made a will before they lost capacity and the intestacy rules would not make appropriate provision for their family and dependants;
  • Where someone has made a will but their circumstances have changed, so the will no longer makes appropriate provision for their beneficiaries; and/or
  • Where there are doubts about the validity of a will made by the person before it was confirmed that they no longer had capacity, and it is thought desirable for the court to make a further will in their lifetime, which may help avoid litigation after their death.

Who can make an application to the court?

Anyone can make an application, although most are made by a person’s appointed attorney or deputy, a beneficiary under an existing will or the intestacy rules, or someone seeking to become a beneficiary under a proposed statutory will.

How does the court make its decisions?

Once the court has established that a person does not have capacity, then it will consider whether or not to make the statutory will on their behalf.

It applies the same criteria as any other decision relating to a person’s property and affairs, and asks whether it would be in that person’s ‘best interests’ to execute the will on their behalf.

In reaching a final decision the court will take into consideration a variety of matters, including evidence of a person’s past wishes and feelings, their testamentary intentions and the views of their friends and family.

Mark Lindley TEP is a Partner in the private client team at Boodle Hatfield LLP, specialising in disputes relating to wills, trusts and mental capacity

My mother has dementia – how can I help her?

Posted on By admin
Older woman with dementia and carer

If you think your mother might have dementia the best starting point would be to take her to her doctor to assess whether she has lost capacity or whether she is in the early stages of losing capacity.

A medical professional will be able to assess this for you and subsequently prescribe any suitable medication and advice for you both. This discussion may also help you to decide whether your mother is still able to manage at home, or whether she needs part time or full time assistance, either at home or in a care home.

Is there a power of attorney?

If there is a power of attorney in place then the attorney (usually a family member) will be legally capable to deal with your mother’s affairs.

Keep in mind that your mother may have prepared one without telling you in earlier years, so it might be worth checking with other family members or friends.

If there is not a power of attorney in place then your mother’s doctor should be able to advise whether she still has capacity to make a power of attorney, appointing you or another family member to be her attorney. However, the advisor that prepares the power of attorney must be confident that she has still has capacity and understands exactly what it is and what the implications of the document are.

Are there any other options?

If you are certain that your mother no longer has capacity to make any decisions, you can apply to become a deputy (England and Wales)/guardian (Scotland)/controller (Northern Ireland). An application needs to be sent to the Court of Protection (England and Wales), Office of the Public Guardian (Scotland) or the Office of Care and Protection (Northern Ireland) and they will decide whether you are a suitable person to make decisions on your mother’s behalf. The application form includes a section for a qualified medical professional, who will need to meet your mother in order to confirm that she no longer has capacity and needs someone to make decisions for her.

You should discuss the matter with the family and make sure that they are happy for you to be nominated. Any conflict could cause the application to be denied.

Seek advice

If you are unsure of how to proceed or need further advice, a qualified professional will be able to advise on the various options available to you and can handle any applications on your behalf.

For advice on coping with dementia, as well as information on the signs and symptoms, visit www.alzheimers.org.uk.

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