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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:

Deputyship Order
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:
  • Apply a high standard of care for every decision that is made.
  • Only make decisions that are in the individual's best interests.
  • Only make decisions that are authorised by the Court.
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:
  • The terms of the order made will address only the issues before the Court at the time of the application so as to have as little impact on the individual's life as possible. As such, if there are subsequent issues that arise at a later date that are not covered by the order, a further application to the Court would have to be made.
  • Any order made will only last as long as the individual has lost capacity. If the individual regains capacity the order will cease to have effect.
  • The Court will require insurance, by way of a Security Bond to be put in place by the deputy if the order sought relates to the individual's finances or property.
  • The deputy will have to periodically provide a report to the Court of Protection to confirm the decisions that have been made for the individual.
  • If the individual has periods where they regain capacity to make decisions for themselves, the deputy must not make any decisions where they believe the individual is capable of doing so.
  • A deputy cannot decide to stop life sustaining treatment for an individual.
  • A deputy cannot create a Will for an individual
Statutory Wills
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:
  • The best interests of the individual, as is perceived by the Court.
  • The individual's current circumstances and any past or present wishes or feelings that they had expressed whilst they had capacity.
  • The individual's beliefs and values.
  • The views of those who are engaged in the care of the individual or are interested in their welfare, such as an attorney or deputy.
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.

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