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How does the Court of Protection impact your Will and estate planning?

As we approach World Alzheimer’s Month, now is a good time to look at the role of the Court of Protection and its responsibility for those with a diminished mental capacity.

This Court, responsible for making decisions on behalf of individuals who lack the mental capacity to do so, can have an important role to play when it comes to Wills, probate, and estate planning.

The increasing relevance of the Court of Protection

The Court of Protection’s importance has grown in response to societal changes, including increased life expectancy and a higher incidence of conditions such as dementia and Alzheimer’s disease.

As a result, more people are living longer but with impaired mental capacity, making it necessary for families to seek legal guidance on how to manage their loved ones’ affairs.

The Court’s role is to ensure that decisions made on behalf of a vulnerable adult are in their best interests, whether those decisions relate to their health, welfare, or financial matters.

This includes the management of assets, the creation of statutory Wills, and the appointment of deputies who can make decisions on the individual’s behalf.

Statutory Wills

One way in which the Court of Protection impacts estate planning is through statutory Wills.

A statutory Will is a Will made by the Court on behalf of an individual who lacks the mental capacity to make their own.

These Wills are often necessary when the individual’s circumstances change after they lose capacity, such as receiving an unexpected inheritance or the birth of a new family member who should be considered in the estate.

The process of creating a statutory Will is complex and involves gathering extensive evidence to demonstrate the incapacitated person’s wishes and feelings, their past and present relationships, and their financial situation.

The Court then makes a decision based on what it believes the person would have wanted, balancing the needs of potential beneficiaries with the protection of the vulnerable person’s interests.

For families, this process can be both a relief and a challenge.

On the one hand, it ensures that a fair and legally sound decision is made when the individual cannot decide for themselves.

On the other hand, it can lead to unexpected outcomes, especially if the Court’s decision differs from what the family members believed the person would have wanted.

Planning ahead

To avoid the uncertainty and emotional strain associated with the Court of Protection’s involvement, it is advisable to plan ahead.

Creating an estate plan that includes a Lasting Power of Attorney (LPA) can help ensure that your wishes are respected, even if you lose the ability to make decisions for yourself.

An LPA allows you to appoint someone you trust to manage your affairs if you become incapacitated.

For more information on LPAs, please read our most recent blog on the subject.

Regularly reviewing and updating your Will as your circumstances change can prevent the need for a statutory Will.

Keeping your estate plan current ensures that your wishes are clear and legally enforceable, protecting your estate from disputes and ensuring your loved ones are provided for as you intended.

If you would like more information on the Court of Protection, or advice on Will and estate planning when facing illnesses such as Alzheimer’s Disease, please contact our team of solicitors today.

Rachel Blackburn

Head of Wills, Probate and Older Client Services

I joined Mander Hadley’s Wills, Probate and Older Client Services Team in 2018.I specialise in the preparation of Wills, Probate and estate administration, trusts and trust administration and Lasting Powers of Attorney. I also have experience of care fee planning and appeals of Continuing Health Care decisions.

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