Where an individual no longer has capacity to make their own decisions this can cause problems for their family and friends, not least due to the fact that they will not be able to have a Will drawn up on their behalf nor will they be able to have a Power of Attorney drawn up to enable someone else to manage their own affairs.
However, if you are faced with such a situation, there are remedies open to you through an application being made to the Court of Protection:
If an individual is shown to have lost capacity and they do not have a valid Power of Attorney in place to manage, an application can be made by a family member or a friend to the Court of Protection for a Deputyship Order to be made.
Due to the implications of such an order being made, the Court of Protection will only exercise its power if it can be clearly shown that the individual has lost capacity and it is necessary for such an order to be made to ensure the needs of the individual are met. When making decisions on behalf of an individual, a deputy will have to:
If the Court agrees to such an order being made this will provide authority for the deputy to make decisions about the individual's personal welfare or property and finances. However, the following should be noted:
If an individual is shown to have lost capacity and they do not have a valid Will, an application can be made on their behalf to the Court of Protection for a Statutory Will to be put in place for them.
If such an application is made and the Court is minded to order a Statutory Will for the individual, the terms of this will be based on the following considerations:
It should also be noted that, should a Statutory Will be created by the Court it is only going to broadly deal with an individual's assets.