The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
I hope Part 1 of this series of articles gave you an introductory insight into the Court of Protection and de-bunked some legal jargon that you may have come across. This week, I will be explaining the process of making an application to the Court of Protection to make or change a Will for someone who is not able to do this themselves due to lacking mental capacity.
There are many reasons why you might consider that someone needs a Statutory Will. These can include:
- The person does not have the capacity to understand what a Will is;
- The person does not understand why they might need a will;
- They do not know how much money/property they have; and
- They do not understand the consequences of including/leaving someone out of a Will.
This list is not exhaustive - there are many other reasons why you might believe that someone does not have capacity to make a Will and an application to the Court of Protection needs to be made.
Mental capacity is decision and time-specific. Therefore, just because someone has a Deputy to manage their property and finances, it does not mean that they do not have capacity to make a Will. If you are unsure whether someone you know lacks capacity and needs to make a Will, I suggest you meet with a solicitor and discuss this further. Under the Mental Capacity Act 2005, we must assume that someone has capacity unless we are proven otherwise by way of an assessment.
The process of making an application for a Statutory Will can largely be split into two stages. Stage 1 is the paper application and stage 2 is the issuing of the application by the Court of Protection and the involvement of the Official Solicitor.
Stage 1 – paper application
We do not begin drafting the application until we have completed a capacity assessment. There are lots of organisations that we can instruct to conduct the capacity assessment, or it may be easier to instruct a professional who is already in the person’s care team. Capacity assessments usually come at a cost, but this is dependent on the circumstances. Once we have received the completed capacity assessment and confirmation that the person lacks capacity, we can begin looking at preparing the remainder of the application documents.
There are several forms that need to be completed, and once the documents are prepared and signed, they are submitted to court along with the £365 court fee.
The application will involve information such as a family tree, an explanation as to why the Will is in the person’s best interests, a draft version of the proposed Will itself and financial information relating to the person who lacks capacity.
Stage 2 – issuing of the application and the involvement of the Official Solicitor
Once the application is submitted to the Court of Protection, we then wait to receive correspondence from the Court that the application has been issued - this just means that the Court has registered the application. We are then provided with directions from the Court of the next steps. These include serving the parties involved with the application.
It is at this point that the Official Solicitor becomes involved in the application. The Official Solicitor forms part of the judicial system and will be invited to act as litigation friend for the person who lacks capacity. Her role will be to consider the application and raise any necessary enquiries to determine whether she will support the application and agree that it has been made in the person’s best interests.
From my experience, the Official Solicitor can make enquiries with any of the parties involved, ranging from care homes, supported living arrangements or with anyone else the Official Solicitor deems necessary to prepare her submissions to court and support the application. This can mean answering sometimes lengthy enquiries raised by the Official Solicitor about why you believe the proposed Will to be in the person’s best interests. We can anticipate some of these enquiries and include them in the witness statement accompanying the application; however, you should be prepared for any and all potential enquires from the Official Solicitor. This is standard procedure and absolutely nothing to worry about.
The court would have set a deadline for the Official Solicitor and the applicant to have reached agreement. If agreement is reached by the deadline, the Official Solicitor will prepare her submissions to court and we then wait for the court to approve the proposed Will.
If the applicant and the Official Solicitor don’t reach agreement or the application is contested, then there may be a hearing the resolve the disagreement.
This is a brief overview of the Statutory Will process and if you require further advice, please get in touch.
For more information
Contact Puja Desai.
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