Court of Protection
Articles:
Court of Protection applications for the mentally infirm
Sometimes a person is unable to manage their affairs due to mental incapacity.
When matters are straightforward a friend or family can help by dealing with the Benefits Agency and Social Services. However, it may be necessary to apply to the Court of Protection to appoint a Deputy, especially when the person needing care (known as the “Patient”), has property that needs managing and decisions need to be taken about their health and welfare. Also, substantial savings in tax can be made if the Patient’s will is amended or one is prepared if they do not have a will. A Patient cannot make a will, but a Court can approve a will made for the Patient. A Deputy must act in the best interests of the Patient and adhere to the guidelines laid down in the Mental Capacity Act 2005. Stennett & Stennett has many years experience in acting as Deputy for Patients, and helping clients in making applications to the Court of Protection.
Kind hearted Aunty Florence
I had an interesting case to deal with concerning Florence (or “Aunty Flo”) to her family. She was elderly lady. She never married and had no children. Her next of kin were her nieces Jean and Beverly. Flo lived in a large house and being a frugal person had built up substantial savings. Flo was very close to Jean and raised her as if she were her daughter. In fact Jean lived with Flo and was her main carer. She was not as close to Beverly and was aware that the sisters did not get on with each other.
About a year ago Florence made a handwritten will. She did not see a solicitor when she prepared it because she wanted to save money. In her will she gave the house to Jean and two thirds of her remaining estate. One third of the residue was given to Beverly.
Jean came to see me recently to ask for help to manage Flo’s affairs. Her aunt had been diagnosed with vascular dementia and the hospital said she did not have the capacity to make a lasting power of attorney. Jean was worried about the fact that Flo failed to ensure her will was signed in the presence of two witnesses. Unfortunately Flo did not get around to executing her will before she lost capacity and therefore her will was invalid. Also Jean said that Flo expressed a wish many times to make a lifetime transfer of one half of the house in order to avoid inheritance tax.
I advised Jean that to manage Flo’s affairs she needed to apply to the Court of Protection to become her Deputy. I also said that since Jean did not have a valid will on her death the estate would be divided equally between her and Beverly.
At the same time Jean had to make an application asking the Court to approve the making of a will for Florence reflecting the wishes set out in the handwritten “will”, and the approval of lifetime transfer of one half of the house to Jean to avoid death duty. I said the procedure was not straightforward because before it would make an order the Court needed to be satisfied Jean’s appointment as Deputy was in Flo’s best interest. I helped Jean make an application which included detailed information about Flo’s life and family ties, an inventory of her assets and income. Importantly I assisted Jean with the preparing a schedule setting out the potential saving of inheritance tax to Flo’s estate were the court to approve the lifetime transfer of the house.
You can contact Solicitor Michael Stennett on 020 8920 3190 if you have any questions about this topic, or why not attend the free advice clinic that takes place at Stennett & Stennett, 4 Winchmore Hill, Southgate, London N14 6PT (opposite Marks & Spencer) on the first Wednesday in every month.