Making A Will When Someone Has Lost Capacity

Managing the affairs of a loved one, in a situation where they no longer have capacity can be emotive, challenging and a big responsibility.

If a loved one lacks the capacity to manage their finances and affairs, then they may also lack the capacity to make a Will. To make a Will an individual must have testamentary capacity.

So how can you ensure their finances are in order should your loved one pass away? This is where the importance of statutory Wills comes in.

A Statutory Will is a Will that is made on behalf of somebody who doesn’t have testamentary capacity.  This is done via the Court of Protection and can be a complex and emotive process with multiple steps, in order to ensure that your loved ones wishes, and feelings are followed, and the Court of Protection must agree that this is in their best interests.

The current steps for making a Statutory Will by the Court of Protection are set out within the Mental Capacity Act 2005. In order to try and follow your loved ones’ wishes and feelings, the Court of Protection will consider things like, the persons’ own wishes, past and present, the views of their carers, family and friends, if applicable, the views of an attorney or deputy if appointed, any previous statements written by the individual and any previous Wills or Codicils, if applicable.

Alternatively, a Statutory Codicil can amend an existing Will, and is used for making small changes which avoids having to rewrite the entire Will.

The steps for creating a Statutory Will include:

• An assessment of testamentary capacity
• Drafting and submitting the Application forms to the Court of Protection
• Appointment of the Official Solicitor to act on behalf of the person
• Service of the application
• The court’s decision (This can be after hearing(s)
• Execution of the Will for sealing by the court

If your loved one’s assets are complex, they have not made a Will, or their current Will is no longer appropriate and you believe that something should be put in place in order to ensure that their finances and affairs are in order then do not hesitate to contact Wilson Browne Solicitors, one of our Court of Protection specialists are here to help. We can also assist long term in managing their property and affairs as deputies and attorneys.

If you are unsure whether a Statutory Will may be appropriate, we can offer a fixed-fee appointment to advise you.

For further advice get in touch with the experts in our offices in Northampton, Kettering, Corby, Higham Ferrers, Wellingborough and Leicester.