We can assist attorneys, deputies, family members and other parties who are concerned about someone who lacks capacity in the event that an application to the Court of Protection is necessary, such as:
Statutory will applications
If a person does not have the necessary testamentary capacity to make a will, then the court can make an order authorising a person to execute a will on their behalf. The court will consider what would be in the best interests of the person which includes a consideration of how they would be remembered after their death. An attorney or deputy does not have the authority to make a will for someone who has lost the capacity to make a will.
Applications for permission to make a gift
Attorneys and deputies have limited powers by which they can make gifts on behalf of someone lacking capacity, such as on birthdays, on marriages and civil partnerships or on other customary occasions. This is provided that the value of each gift is not unreasonable having regard to the circumstances and in particular the size of the person's estate. However, an application can be made to the Court of Protection for approval of a more substantial gift, or to make a gift other than on customary occasions. The court's authority is required, otherwise the attorney or deputy may be removed by the court for exceeding their authority, or the gift may not be effective for tax planning purposes.
Applications for permission for property transactions
Attorneys and deputies may have the authority to sell the property belonging to the person lacking capacity. However, on occasion an application to the Court of Protection is required in order to obtain approval for such a transaction. This could be because the sale is at below market value or because a family member wants to buy it.
Application for authority to create a trust, such as a Personal Injury Trust
The Court of Protection can authorise that the property belonging to a person lacking capacity can be held on trust, if this would be in the individual's best interests. This may be the case if the individual receives a substantial settlement in relation to a personal injury claim which requires careful management.
Our team and approach
Many of our private client solicitors are specialists in issues affecting those who have lost the capacity to manage their affairs.
This may be in the case of persons who already lack capacity (which may require an application to the Court of Protection), or those who want to plan ahead and make a lasting power of attorney.
Our Court of Protection team has the specialist experience to take on complex problems in the area of capacity, including the issues that arise when more than one jurisdiction is involved.
Many of our lawyers are members of professional organisations such as the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly, and the Association of Contentious Trusts and Probate Specialists (ACTAPS). Richard Frimston is the Law Society representative to the European Committee of the Union Internationale du Notariat (UIN) and is currently Chair of the STEP EU Committee and Co-Chair of the STEP Public Policy Committee.
We know that clients often instruct us at difficult times and these are sensitive matters. We understand the importance of giving clear, timely and practical advice.
The Legal 500 says the team is "recommended for its ability to combine tax and succession advice with general advice on property and other matters" (2019).