My loved one has lost mental capacity and doesn’t have a Will. Can the Court of Protection provide a Will?It is vital that everyone has a valid Will in place as early as possible in their life to ensure that, following their death, their wishes are carried out and the family and loved ones are spared arguments, stress and fallings out about what the person would have wanted to happen. Unfortunately, many people do not make a Will in time. The reason it is important to have a valid Will in place as early as possible is because, in order for a Will to be valid, the person making the Will must have the mental capacity to do so. It is an increasing issue that, as we live longer, the chance is higher that we will lose mental capacity later in life due to illness, a condition, a stroke or an accident. If a person is not fully aware they are making a Will, it is not likely to be valid and therefore cannot be used to carry out their wishes following their death. Alternatively, there may be no Will in place at all. In these situations, an application can be made to the Court of Protection to request that a Statutory Will is made on that person’s behalf. In order to grant a Statutory Will, the Court of Protection will need to be provided with the proposed version of it. The court will be looking to ensure that the proposed Statutory Will has the person’s best interests at its heart. Therefore, the Court will need to see:
- Your opinion (or the opinion of family and friends) of what the person would likely have chosen to do if they were able to make a Will themselves and the basis of this opinion
- What the person was like before they lost mental capacity i.e. their beliefs and personal values and how these might have formed the basis for their wishes, and also the type of decisions the person made for themselves when they had mental capacity.
Can the Court of Protection amend a valid Will?It is also possible for the Court of Protection to change a valid Will when a person has lost mental capacity i.e. a person has made a valid Will while they have mental capacity, but has then lost mental capacity and the person’s family or loved ones believe that the Will needs to be changed. The Court of Protection will change a valid Will if it is satisfied that a change in circumstances in the person’s life since the original Will means that it no longer carries out that person’s wishes. These changes could include:
- Divorce or separation, remarriage or a new partner
- New family members e.g. grandchildren
- Loss of beneficiaries
- Estrangement of a family member