Mitra Mann, solicitor, outlines the role of the court of protection and the circumstances in which a statutory will may be deemed necessary.

The court of protection

The court of protection is a specialist court set up to protect the interests of those who cannot make certain financial or welfare decisions, because they lack mental capacity.

The court of protection will consider various factors when making decisions. Any decision made for, or on behalf of, a person who lacks capacity must be done in their best interests.

Does the court of protection need to be involved in every decision?

In situations where an attorney or a deputy has already been appointed, that attorney or deputy can make certain decisions on behalf of the vulnerable person, and the court of protection need not get involved. 

However, there are instances when the court’s involvement is required, regardless of whether an attorney or deputy exists. This is mainly because there are limitations to what an attorney or a deputy can do, and the court of protection’s approval is required when major decisions are being considered. Examples of such major decisions are:

• making substantial gifts from the vulnerable person’s estate
• deciding where the vulnerable person should live (where there is a disagreement)
• making and signing a will on behalf of a vulnerable person

Making a will in the court of protection (statutory will)

When a person has lost the capacity to make a will and it is considered necessary to make a will, an application needs to be made asking the court of protection to authorise the execution of that will. An attorney or a deputy cannot execute a will without the court of protection’s approval. 

A will approved by the court of protection is known as a statutory will, and there are a few situations in which a statutory will may be considered necessary:

• the vulnerable person has never made a will before
• the estate has reduced in value
• the estate has increased in value, for example, as a result of compensation awarded 
• tax planning purposes
• a beneficiary (or beneficiaries) under an existing will has passed away
• a beneficiary under an existing will has already received substantial gifts, and the will should be adjusted

In some instances, the attorney or deputy sells an asset to pay for care, but the asset was subject to a specific gift in the will. As the sale of the asset defeats the specific gift, the application for a statutory will is to give something to the specific legatee in lieu of the asset.

The court of protection is most likely to allow a statutory will if the person who lacks capacity has never made a will, or if there has been a significant change in their circumstances.

Factors that the court of protection will consider

Prior to the Mental Capacity Act 2005, judges applied the substituted judgement test. In other words, the judge would assess what the vulnerable person would have done, had they had a brief lucid interval at the time the will was made.

However, this test is no longer heavily relied upon. The court of protection is now required to apply an objective test to assess whether the proposed statutory will is in the vulnerable person’s best interests. 

When considering a statutory will application, the court of protection will try to encourage the vulnerable person to participate, and will look at the factors listed in section 4 of the Mental Capacity Act 2005, such as:

• The vulnerable person’s past and present wishes and feelings (and, in particular, any relevant written statement made by the vulnerable person when he had capacity).
• The beliefs and values that would be likely to influence the vulnerable person’s decision if they had capacity.
• The other factors that the vulnerable person would be likely to consider if they were able to do so.

In addition to the above factors, the court of protection may take into account the views of those who are engaged in caring for the vulnerable person, along with the views of the attorney chosen by the vulnerable person, or the view of the deputy appointed for the vulnerable person by the court of protection, as to what would be in that vulnerable person’s best interests.

One aspect of the best interests test is to take into account how the vulnerable person will be remembered after their death. It was held in the case of Re P [2009] that for many people, it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will. However, there have been differing views expressed in more recent cases as to the relevance of the vulnerable person ‘having done the right thing’ by their will. 

Balancing wishes and best interests

A vulnerable person’s known wishes and feelings will be of great importance. However, they are not paramount. That is not to say that the vulnerable person’s expressed wishes should be overridden, and they will be an important factor to consider, but the court of protection must also have regard to other relevant circumstances and factors.

There is no hierarchy between the factors listed in section 4 of the Mental Capacity Act 2005. The weight to be attached to the various factors, including the vulnerable person’s wishes, will depend largely on the individual circumstances of the particular case. Ultimately, the court of protection must be convinced that authorising the execution of a statutory will is in the vulnerable person’s best interests.

About the author

Mitra Mann is a solicitor with Wright Hassall LLP. She specialises in inheritance disputes, mental capacity issues, disputes in court of protection proceedings and disputes concerning the appointment or the conduct of a deputy or an attorney.

See also: A guide to powers of attorney