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Testamentary Capacity and Banks v Goodfellow 1870

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

 

In 1870, a three-part test for Testamentary Capacity was laid down in what is now referred to as
Banks v Goodfellow (1870). 

It sets out that a Testator has capacity if:

  1. They understand the nature of making a Will and its effects;
  2. They understand the extent of the property of which they are disposing; and
  3. They are able to comprehend and appreciate the claims to which they ought to give effect and are not affected by any disorder of the mind that influences their will in disposing of their property.

Solicitors and Will writers therefore are duty-bound to ask certain pertinent questions of their clients when preparing Wills, so that they can satisfy themselves that the test has been met.

If in any way the test has not been met, then after the Testators death, the Will could easily be challenged under the claim that full Testamentary Capacity was not established.

In order to satisfy these conditions, our Advisor will need to establish the following:

  1. Your name and full personal details including date of birth, etc.
  2. The makeup of your immediate family – even if certain members are going to be excluded from the Will.
  3. A broad understanding of your estate notated in the form of a Statement of Assets
  4. What gifts are being given, to whom and under what circumstances.
  5. Questions regarding your current state of health and any medication that you may be taking, if relevant to establishing coherence of thought.

Once Testamentary Capacity has been established, this may be clearly noted as such, at the very beginning of your Will.

Because we keep very accurate attendance notes and records of all of our conversations with you, we are 100% confident that once a Will produced by ourselves is signed and witnessed, it is from then on completely robust and steadfast against any potential claim of insufficient mental capacity, assuming all the information required to establish said capacity has been forthcoming.

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Lasting Power of Attorney – Court of Protection Deputyship explained

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

Often life throws up surprise’s and a family member may find themselves unable to manage their own financial affairs or make informed decisions about their personal welfare.

Illnesses such as Alzheimer’s, Parkinson’s and other forms of Dementia can often be the cause of someone losing the ability to make their own decisions. When this happens, it is called “loss of mental capacity”.

Should this happen to you or someone in your family and the correct paperwork i.e. (a Lasting Power of attorney for Property & Financial affairs or Health & Welfare) has not previously drafted and correctly registered with the Office of the Public Guardian (OPG), you need to apply to the court of protection to become a Deputy in order to take control of your loved one or family member’s affairs

Deputyship is usually given to a close family member or friend or to a professional and must be applied for through the Court of Protection.

The appointed Deputy is responsible for the vulnerable person’s decisions about issues like property and finance, and occasionally healthcare.

Court of Protection & Deputies Frequently Asked Questions

Who are the Court of Protection and what do they do?

The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who it claims lack mental capacity to make decisions for themselves The Court of Protection makes decisions on applications which involve people who lack mental capacity to make their own decisions.

Court of Protection Deputyship – Why do people need one

A Deputy and is given the authority to manage the day to day financial affairs of the person who has lost the mental capacity.

When a friend or loved one has lost their ability to manage their own financial affairs (often referred to as the loss of mental capacity), the Court of Protection appoints someone to do this on their behalf.

REMEMBER mental capacity is a complicated subject and it is important to remember that someone may be able to make decisions about everyday issues like what to eat or what to watch on television, but can lack the mental capacity to make decisions on more complex issues, like financial management.

Not always a Deputy – What is an Appointee?

Applying to become an Appointee means you are applying for the right to deal with the benefits of someone who can’t manage their own affairs because they are mentally incapable or severely disabled.

If the incapacitated person does not have savings or property in excess of £5,000 and their only income is pension or state benefits, then a Deputyship Order will not be proportionate to their needs.

So, in these circumstances it would be more appropriate to contact the Department for Work and Pensions (DWP) to become an appointee for the incapacitated person.

Apply to be a Deputy?

Anyone over the age of 18 can apply to act as a Deputy. Usually a friend or relative will be the most suitable person to apply, but it is the Court of Protection who has the final say in who can act.

In some cases, it may not be suitable for a friend or relative to act and the Court will appoint an approved Deputy (“a Panel Deputy”) to act.

You may choose to appoint a solicitor to step in as Deputy and act in their professional capacity. A Deputy is responsible for taking on the responsibilities of another person and it is important that a Deputy considers this carefully before making an application.

It is normally recommended that at least two persons should apply to become Deputy to help ease the burden of responsibility. A Deputy must comply with the Court Order and should always act in the best interests of the incapacitated person.

The Deputy is responsible for the finances and bills of the person they are acting for. The Deputy may have to submit an annual account to the Office of the Public Guardian.

Deputyship orders are made for Property and Health (like Lasting power of Attorney’s)

Property and Financial Affairs

(This is the most common of Deputyship Order and allows a Deputy to manage a person’s finances)

Health and Welfare

(The Court of Protection will only grant this Order in certain situations)

A Deputy may also apply to the Court of Protection to make a will on behalf of the incapacitated person. This is known as a Statutory Will.

Confused – Jargon buster

Court of Protection – The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack capacity

 

OPG –  The OPG stands for the Office of the Public Guardian who are the supervising body for Court of Protection Appointed Deputies, providing support to Deputies and safeguarding vulnerable adults.

 

How much does it cost to apply to become a Deputy?

At this time, a Deputyship application starts from £950 + VAT in line with the Court of Protection solicitors’ fixed costs. There are some disbursements, primarily a £400 court fee, these should be clearly set out before the start of any application process. Other fee’s may apply like annual supervision fee’s depending on type of supervision the fee can be found at https://www.gov.uk/become-deputy/fees

 

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