What To Do When A Loved One Loses Mental Capacity And Doesn't Have A Will
Posted on 26th February 2024 at 16:24
Wills are important legal documents which everyone should have in place. But what happens when a person loses mental capacity before they’ve had a chance to put in place or update their Will?
Statutory Will
This is where a Statutory Will can be applied for, but only in the correct circumstances.
A Statutory Will is a document that is made on behalf of a person who lacks the mental capacity to put in place a valid Will themselves. This type of Will can be authorised by the Court of Protection and is governed by the Mental Capacity Act 2005.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 sets out the criteria for making decisions on behalf of individuals who are unable to make specific decisions for themselves.
Section 18 of the Mental Capacity Act 2005 allows for the Court of Protection to approve and authorise a Will on behalf of a person who is unable to make a Will due to a lack of mental capacity.
Court of Protection
When considering a Statutory Will application, the Court of Protection will review the circumstances and evidence provided to ensure that the proposed Will is made in the best interests and wishes of the person lacking capacity as far as possible.
Statutory Wills may be required for the following individuals: -
Individuals with a dementia or Alzheimer’s diagnosis.
Individuals with learning disabilities.
Individuals who have suffered brain injuries.
Individuals who have suffered sudden accidents resulting in a loss of capacity.
Making an application to the Court of Protection for a Statutory Will can be a long and complex process: -
1. Gather information and evidence to include details about the individual’s assets, liabilities, financial circumstances, family tree, and any wishes they have previously expressed about their estate.
2. Take advice from a professional who specialises in Wills and probate with regards to the process and how to submit the application.
3. Obtain and complete the application form (COP1) from the Court of Protection.
4. Provide supporting documentation in addition to the application form i.e. financial statements and medical reports.
5. Serve notice to the individual lacking capacity, their relatives and any other relevant parties who may be impacted by the authorisation of a Statutory Will. Such notice allows all relevant parties to express their views.
6. Instruct an independent expert to assess the individual’s capacity and provide a report.
7. Once an application is made, the Court may arrange a Court hearing to consider the application further.
8. After considering the application and evidence provided, the Court will decide as whether a Statutory Will is appropriate. If the application is approved, the Court will issue an order authorising the creation of a Statutory Will.
Timescales
It is important to note that the process of applying for and preparing a Statutory Will can take between 9 and 12 months and can be very costly.
Therefore, there are several factors to consider when determining whether an application is worth applying for.
One factor is to consider whether the property and assets of the individual are
substantial enough.
You also should consider the expected lifespan of the person lacking capacity as they would need to survive the length of time required to obtain a Statutory Will.
At Avery Walters our team of specialists can provide advice about Statutory Wills.
Share this post:
