What is a Statutory Will?
If someone no longer has the mental capacity to make their own Will, a Statutory Will can be made on their behalf under the Mental Capacity Act 2005.
If a family member or close friend loses ability to make decisions for themselves, perhaps because of dementia, a serious illness or a brain injury, the Court of Protection may be required to intervene.
The Court of Protection can make decisions on the financial or welfare matters relating to people who are no longer able to make decisions for themselves. The Court of Protection’s intervention is usually required because the individual has no Lasting Power of Attorney in place or agreement can’t be reached about what’s in their best interests.
The Court of Protection can make various Orders in the best interests of a person who lacks mental capacity to make decisions for themselves. These can be declarations about whether or not one lacks the capacity to deal with a specific matter, one-off decisions on a specific matter or Orders appointing a Deputy to make decisions on behalf the incapacitated person.
For free initial legal advice get in touch with our Court of Protection Solicitors.
There are two kinds of Deputy Order that the Court of Protection can make:
The Court of Protection tends to deal with finance and property applications in a different way from health and welfare matters. In relation to property affairs, if a person lacks the mental capacity to manage his/her financial affairs, it will generally approve of applications to appoint a Deputy to make decisions the incapacitated person can’t make.
However, the Court of Protection is a lot more reluctant to appoint a Personal Welfare Deputy. With welfare matters, when a person is found to lack capacity to make a decision for themselves, and there is a dispute between family, friends and public bodies like the Local Authorities or NHS Trust on what’s best for someone, the Court of Protection will usually make a one-off Order dealing with the specific matters at hand.
An order that allows one person to make all decisions on a specific issue is a serious order with far-reaching consequences. The law prefers the Court of Protection to make one-off decisions on specific matters rather than to appoint a Deputy to make the decisions. However, with most property affairs, there will be a series of ongoing decisions to be made.
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