When a person is unable to make informed decisions for themselves but it is necessary to ensure a Will is put in place for them, this can be done by way of an application to the Court of Protection for what is known as a statutory Will.
The Court of Protection is a specialist court that exists to help those who do not have the capacity to manage their own affairs. It can make decisions on their behalf relating to health, welfare, finance and property; and will always act in the best interests of the person who lacks capacity.
A Statutory Will is made by the Court of Protection on behalf of someone who is unable to make a Will for themselves.
A statutory Will is necessary where the person the Court are looking after either requires a new Will or a change to an existing will. For instance:-
no Will had been put in place before they lacked capacity;
a change in the Will is needed;
the beneficaries in the Will have died and there are no substitutes in place;
the estate is high value;
tax planning reasons;
change in value of estate
The process can be very time consuming and complex and you need to make a specific application to the Court of Protection. There is a prescibed procedure that must be followed and as such specific legal advice from either ourselves at Bequeathed or a legal advisor is a must.
There are a significant number of documents that need to be prepared including application forms, witness statement, information form and an assessment of capacity form; together with supporting information such as a copy of any up to date Will (where relevant), a copy of the proposed new Will; deputyship order, any registered lasting powers of attorney, full details of the person's estate inclufing income and spending; executor details, a full family tree and an explanation as to why the person making the application is of the view it is in the best interests of the person in question to have a statutory will put in place.
Once all these documents have been prepared the Court will acknolwedge and confirm the next part of the process.
The Court will always have the person's best interests at the forefront and will also wish to take into account how they will be remembered after death. They will in doing so consider ther wishes both past and present, their beliefs and values, the views of any carer, the views of the attorney and the views of the deputy appointed by the Court of Protection.
Even where you have a lasting power of attorney in place that does not give the attorney the ability to change your will or make a new Will. This is one of the reasons why it is so incredibly important to ensure you put in a Will in place at the earliest opportunity, keep it under review, but know there is this prescribed procedure that can be followed where a person has then lost capcity but a new will/ revisions to a previous will are needed.