As your loved ones grow older, there may sadly come a time when they become unable to make decisions about their own welfare or finances, perhaps due to a medical condition such as dementia, or as a result of a serious brain injury. Unfortunately, in these situations they often also become legally unable to make a valid Will.
At HPJV, we know how worrying it can be when a loved one becomes unable to plan for their own future. If a person dies without making a Will, then their money, property, and possessions will be distributed according to the rules of Intestacy. This is often inconsistent with the deceased’s wishes. They may also become vulnerable to exploitation by other friends or relatives if there are no legal documents protecting and preserving their wealth.
Our team of compassionate and helpful Court of Protection solicitors specialise in assisting the friends and relatives of people who have lost their mental capacity by making applications to the Court of Protection for Statutory Wills.
If you are concerned about a loved one’s capacity to plan for their own future, get in touch with our Court of Protection lawyers in Newport today by calling 01633 242526, emailing email@example.com, or by filling in the enquiry form to the right of the page.
Our Court of Protection solicitors’ Statutory Wills expertise
Applying to the Court of Protection can be stressful and intimidating without the assistance of a skilled solicitor. We have specific expertise in all types of Court of Protection applications, including the creation and alteration of Statutory Wills.
Our goal is the make the application process as smooth and straightforward for you as possible, so you don’t have to worry about your loved one’s future any more than necessary. We can guide you through the entire process, from filling in the forms, to notifying interested parties, to representing you at any hearings.
We offer all new clients a free initial 30-minute consultation, either by phone or in person, to discuss your situation. So, if you are concerned that a loved one may be unable to make their own Will, please do not hesitate to get in touch to speak with a friendly member of our team.
What is the Court of Protection?
The Court of Protection was created to assist people who become unable to make their own decisions due to mental incapacity. The Court of Protection has many responsibilities including:
- Deciding whether a person lacks mental capacity
- Appointing deputies to make financial and/or welfare and care decisions for a person who lacks capacity
- Making urgent and emergency decisions for people who lack capacity, for example where immediate medical treatment is needed
- Authorising deprivations of liberty if it is in a person’s best interests
- Making Statutory Wills on behalf of people who cannot make a Will themselves
What is a Statutory Will?
To make a valid Will, a person must have sufficient mental capacity – known as “testamentary capacity” – to do so. Where a person lacks testamentary capacity, the Court of Protection can step in to make a Will on their behalf. These Court authorised Wills are known as Statutory Wills.
When are Statutory Wills necessary?
It may be necessary to apply to the Court of Protection to make a Statutory Will for someone who lacks testamentary capacity when:
- They have never made a Will before
- They own high value assets
- They made a Will, but their estate has now increased or decreased in value
- One or more of the beneficiaries of an existing Will have died or already received gifts from the estate
Statutory Will may also be made for tax planning purposes, for example, to arrange a person’s money and property to minimise Inheritance Tax.
A person lacks testamentary capacity when:
- They do not understand what a Will is or what making one means and/or
- They do not understand how much money or property they own and/or
- They do not understand how their Will might affect other people, including the beneficiaries and people who would inherit under the rules of intestacy
How to apply for a Statutory Will
Applying for a Statutory Will involves a number of forms, including:
- Assessment of Capacity Form– which must include an opinion from a medical professional such as the person’s doctor as evidence of their incapacity
- General Court of Protection Application Form
- Information form– with details of the order you want the Court of Protection to make
- A schedule of the person’s income, expenditure, assets and their value
Once the Court of Protection receives and processes your Statutory Will application, it will send you a “Directions Order” ordering you to notify certain people about the application, including:
- Any Beneficiaries under an existing Will who will be affected by the Statutory Will
- Anyone who would expect to benefit if the person died intestate
- Anyone else named on the application
- The Official Solicitor
The Court of Protection will then either approve or reject your application or arrange a hearing if they need more information. If your application is rejected, you have 21 days to appeal.
Although it is a complicated process, our Court of Protection solicitors have extensive experience making these applications for clients and their loved ones. We will support you through the whole process, including making the initial application, ensuring you notify the correct people, attending hearings on your behalf if necessary, and appealing any unsatisfactory decisions.
Who can apply for a Statutory Will?
You will likely need permission to apply to the Court of Protection for a Statutory Will unless you are one of the following exempt people:
- The incapacitated person themselves
- An Attorney under a Lasting Power of Attorney or Enduring Power of Attorney
- A Court of Protection Deputy
- A Public Guardian
- The Official Solicitor
- A person who would inherit under the rules of intestacy
- A Beneficiary under the last Will
- A person for whom the incapacitated person might be expected to provide
If you are a friend or relative of the incapacitated person but do not fall into the above categories, we can still help you apply to the Court of Protection for permission to apply for a Statutory Will.
What are the Court of Protection fees for a Statutory Will?
An application for a Statutory Will costs £385. You may also have to pay a further £500 if the Court lists a hearing, and any additional fees if the Official Solicitor appoints a solicitor to act on behalf of the incapacitated person.
How does the Court of Protection decide whether to make a Statutory Will?
Assuming a person is found to lack testamentary capacity, the Court of Protection will decide whether to make or change a Statutory Will based on what is in their best interests. Factors the Court take into account include:
- The incapacitated person’s wishes, both past and present
- The beliefs and values which would likely affect the incapacitated person’s decisions if they could make a Will themselves
- Anything else the incapacitated person would likely consider
The Court will also consider the views of third parties, including anyone caring for the incapacitated person, any Attorneys, and any Deputies.
Why choose HPJV’s Court of Protection lawyers for your Statutory Will?
Applying to the Court of Protection for a Statutory Will can be a difficult and stressful time for the loved ones of people lacking mental capacity. However, Statutory Wills are essential to protect vulnerable people, ensure their futures are planned for, and guarantee that their final wishes are carried out after they die.
At HPJV, our team of Court of Protection lawyers are devoted to promoting the welfare and security of the people you care about. We understand how important it is for your peace of mind to ensure their futures are secured and their wishes followed to the greatest extent possible.
We are recognised by the Law Society for our client care and legal practice management skills through the Lexcel Accreditation. Therefore, you can trust our first-class solicitors to provide you with advice and representation which is reliable, practical, and sensitive to your individual needs.
HPJV Solicitors is independently regulated by the Solicitors Regulation Authority (SRA).