When a person looses the mental capacity to make decisions for themselves the court of protection can appoint a deputy to act and make decisions on behalf of that person.
The Mental Capacity Act 2005 clearly states who can take decisions and in which situations and clearly states how they should go about this.
One of the decisions a deputy cannot make is to make / write a will for the person, or change their existing will. However it is possible for the Court of Protection to execute a Statutory Will on their behalf. The Mental Capacity Act 2005 sets out the current statutory scheme for the execution of such Wills.
Frequently Asked Statutory Will Questions
What is a Statutory Will ?
A Statutory Will is made by the court for an individual who lacks the mental capacity to make one for themselves, the Will made by the court of protection has the same effect as if that person had the mental capacity to make a legally valid Will themselves.
How is a Statutory Will applied for ?
An application must be submitted to the Court of Protection. If there is an existent Will / testamentary arrangements in place , it will be necessary to demonstrate to the Court of Protection that there are genuine grounds for changing the existing arrangements.
The basis of the application is Form COP1 .
The Court of Protection is more likely to accept an application to create a Statutory Will, if the person has not previously made a Will or if there has been a major change in circumstances.
The Court of Protection Rules 2007 sets out a procedure that needs to be followed in order to apply for a Statutory Will to be made. Supporting evidence will be required in the form of:-
- A copy of any existing Will or Codicil
- An outline of the family tree
- Evidence that the the person does not have mental capacity
- Proof of country of residence
- Consents to act by proposed executors
- An explanation of why the person may be expected to provide for the proposed beneficiaries
- Details of the current assets
- Details of estimated income and outgoings
- Details of any inheritance tax payable in the event of death
- A copy of the new draft Will or Codicil
More Information
More information can be found from the following resources:
Apply To The Court Of Protection
Court of Protection guidance
Statutory documents produced for the Office of the Public Guardian and Court of Protection
What Is A Court Appointed Deputy ?
