If someone loses mental capacity and he/she does not have a Will, or their Will is out of date, a deputy can make a Will on their behalf.
Making a Statutory Will
This is called a statutory Will. It must be approved by the Court of Protection to be considered valid. A scenario where this may be necessary is where they have substantial assets and for tax planning or succession reasons a Will is advisable.
When this Will is prepared in the correct manner and approved by the Court of Protection when the person passes away their estate will be dealt with in accordance with that Will.
Event where a Deputyship is made there can be some problems with applications for gifts to be made on behalf of the person who lacks capacity. At Harrisons if you would like to give a gift on behalf of somebody who lacks capacity to make that decision themselves, we can assist you in making an application through the Court of Protection to allow you to do this.
A deputy can also make gifts from the individual’s estate. However, if the gift is substantial, permission must be granted by the Court of Protection first. We can help you seek consent from the Court of Protection where needed.
Attorneys and Deputy have only limited powers to make gifts of the Donor’s assets. It may be the case that again for tax planning or succession reasons that gifts are being advised therefore the Court can authorise gifts.
The application can be complicated, depending on the type of gift being made or the circumstances of the person the decision is being made for and therefore specialist legal advice is needed to assist you in making such an application.
Should you need any advice on the issues outlined above please contact our specialist team.