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Mental Capacity

Are you making plans to protect yourself in the future? Or are you acting on behalf of someone that may lack the capacity to make decisions for themselves? Are you looking for some guidance in carrying out your role as deputy or attorney? Are you concerned about someone that may lack the mental capacity to make their own decisions?

Our dedicated and proactive mental capacity team is here to help you. We act in a wide range of issues where a person has lost capacity, including:

  • acting as a professional deputy or attorney
  • advising deputies and attorneys in their roles
  • advising where there are concerns about an attorney or deputy
  • making and defending applications for statutory wills
  • making and defending applications for authority to make gifts in the Court of Protection
  • responding to enquiries from the Office of the Public Guardian
  • advising where there are international assets
  • dealing with trust issues where there is an incapable trustee or beneficiary

We act as professional attorneys and deputies ourselves, and many of us have personal connections with mental capacity law, so we understand the challenges that you face.

We care deeply, will always fight for the rights of vulnerable and incapable people, and are directly involved with reforms to the law in this area.

Our mental capacity team works closely alongside our colleagues across the firm, including in our highly regarded tax, trusts and estate planning and contentious estates teams, and provide truly expert advice, tailored around the individual. Additionally, we have excellent relationships with external financial advisors, mediators, and counsel, to ensure that whatever help you need, we are able to provide it.

International issues

Many people have assets and investments in different countries across the world. Many people live in a country other than the one that they were born in. This can cause some complications when it comes to managing assets and making decisions in the event that the person becomes incapable of managing their own affairs.

Depending on where the international assets are, a deputy authorised by the Court of Protection or an attorney under a Lasting or Enduring Power of Attorney in England and Wales may have difficulty getting their authority accepted in other jurisdictions. Likewise, attorneyships and guardianships granted in jurisdictions other than England and Wales can be problematic to use in England and Wales. The law in this area is complicated, and we are experienced in advising attorneys, guardians, and deputies, both in England and Wales, and internationally, about what steps may be needed to safeguard, manage and protect assets. Please get in touch with us

Recent experience

  • Advising an attorney in respect of her duties as attorney for her mother, who had fluctuating mental capacity, and how this interacts with the best interests principle. We advised our client about the execution of a new will and power of attorney for her mother, dealing with household expenses, the management of a property portfolio, accessing benefits funding and state support, and oversight of a care team to provide support.
  • Advising the joint deputies of a young man who had suffered a brain injury at birth.  Advising in respect of their application to be appointed as deputies and further in respect of an application to the Court of Protection for approval of the joint purchase of a home for the family using a combination of the deputies' own funds and part of the compensation awarded to the young man on conclusion of a claim for clinical negligence.
  • Responding to an application for a statutory will for an elderly lady who had recently had a new will made for her in dubious circumstances. She came from a family with family members in many countries across the world, and had assets in countries in addition to England and Wales. We represented one of her family members, who was not UK based, and who wanted a different outcome to the other parties. We successfully argued for his interest in her estate to be increased, and worked with the other parties to ensure that a settlement was reached without the need for a Court of Protection hearing.