On the loss of capacity of a person, not only can that person’s affairs be looked after by their Deputy, but if necessary a new Will can be created!
A Statutory Will can be put in place by the appointed Deputy by making an application to the Court of Protection. The reason this can be done is that this is classed by the Court of Protection as being in the persons’ “best interests” (Mental Capacity Act 2005). This means assets can go to whom the person would have wanted had he/she had the capacity to do the Will him/herself.
Either an updated Will can be put in place (where the current Will is old and outdated), or a completely new Will can be created. By making a new Will through the Court of Protection the problems associated with Intestacy (where there is no valid Will on death) are avoided.
The application submitted to the Court of Protection includes details about the person’s family (including a family tree), their assets, copies of previous documents and statements as to what would be in the best interests of the person. This is so that the Court can ascertain the following:
• The extent of the person’s Estate.
• Who would have benefitted under the Intestacy Rules.
• Who benefitted under a previous Will or Codicil.
• Which family members would expect to be included in a new Will.
• The person’s own views, wishes and beliefs.
To make the application itself the appointed Deputy must try and ascertain the person’s own wishes. It should be noted that under the Mental Capacity Act 2005, the person should be made to understand as much as possible the application being made on their behalf.
Please be aware that this area of law is complex, and professional advice should always be obtained. If you are a Deputy and feel that putting a Will in place is necessary, please contact me.