The role of the Court of Protection
The Court of Protection deal with decisions about a person’s health, welfare, financial affairs or property in circumstances where the person lacks mental capacity to make decisions for themselves.
The Court of Protection can:
- Decide when a person has capacity to make certain decisions for themselves;
- Make decisions on financial or welfare matters;
- Appoint a deputy to make ongoing decisions;
- Decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid;
- Remove deputies or attorneys who fail to carry out their duties;
- Hear cases concerning objections to register a Lasting Power of Attorney.
Our Contested Probate team are able to assist in cases where you need assistance challenging a statutory will or challenging a Lasting Power of Attorney appointment.
Challenging a statutory will
The purpose of creating a will is to make sure your estate will be administered in accordance with your own wishes. In order to be able to make a will, you must have the requisite mental capacity to do so.
In certain circumstances, the Court of Protection will allow you to make a statutory will on behalf of someone who does not have capacity. The Court of Protection must ensure that a statutory will is made in the person’s best interests, so they will consider the person’s feelings and wishes (both past and present) and any other factors they might have considered if they had capacity.
It is still possible to challenge a statutory will application, if you are in some way affected by the statutory will (for example, if you used to be a beneficiary of a previous will and you are adversely affected by the proposed statutory will) and if you do not believe it reflects the person’s true wishes or best interests.
There will often be some negotiation between the parties as to the terms of the statutory will. It is therefore a crucial step to seek legal advice early on to understand your own position. Our Contested Probate team are able to advise you on the contents of any previous wills or your position under the intestacy rules, so that you can fully appreciate how you will be affected by any proposed statutory will and whether it is within your interests to challenge it.
Challenging a Lasting Power of Attorney appointment
A Lasting Power of Attorney (LPA) allows an attorney to perform certain duties and undertake important decisions concerning health, welfare, property and financial affairs on behalf of someone else.
Relatives are not automatically notified when an LPA is put in place. Instead, the donor must make the decision as to whether they would like anyone to be notified, and if so, that person will receive notice from the Office of the Public Guardian that the donor intends to register the LPA. This then allows that person being notified to object to the LPA on the basis of either a factual objection or some other prescribed grounds.
If the donor still has capacity, they can change their LPA by submitting a new form to the Office of the Public Guardian. They might wish to do this because there has been a breakdown in the relationship with one or more of their chosen attorneys, they may feel that their assets are being mismanaged or they must just wish to change the attorneys due to personal circumstances.
An attorney should always act in the best interests of the donor. Sometimes the wording in an LPA might allow an attorney slightly more flexibility as to how they carry out their duties. An attorney is under a strict duty to ensure they are not benefitting themselves or making a personal gain from the appointment as an attorney and they should be keeping the donor’s finances separate from their own.
If an attorney appears to be acting outside the best interests of the donor or abusing their position, it is crucial that evidence is collected and it is reported to the Office of the Public Guardian so that they can carry out an investigation. Our Contested Probate team can advise you on the information you will need to collate and the likely chances of successfully challenging an LPA appointment.
Please also refer to our Elder and Financial Abuse page for more information on abuse of power or contact us to learn more about we can help you.
