How do I challenge an attorney’s or deputy’s actions?

Grounds for challenging or removing an attorney or deputy

Challenges may arise where there are concerns about:

• misuse of funds
• failure to keep accounts
• conflicts of interest
• decisions contrary to the person’s best interests
• lack of transparency or communication

What can the Court of Protection do?

The court has wide powers and may:

• require accounts or explanations
• restrict the attorney or deputy’s powers
• remove and replace them
• order repayment of funds
• make directions to protect the individual

What is a statutory will?

A statutory will is a will authorised by the Court of Protection for someone who lacks capacity to make or amend their own will. This might be due to conditions such as dementia, a brain injury, or a severe learning disability. The court ensures the will reflects what’s in the person’s best interests.

When is a statutory will needed?

A statutory will may be appropriate where:

• the person has lost capacity and has no valid will
• an existing will no longer reflects their circumstances
• tax planning is required
• family circumstances have changed significantly

Who can apply for a statutory will?

Anyone involved in the person’s care or finances can apply, including:

• attorneys or deputies appointed by the Court of Protection
• family members or close friends
• solicitors or professional carers
• the Official Solicitor
• a Local Authority

Permission from the court is usually needed unless you’re already a deputy or attorney.

How does the court decide?

The court considers what the person would have decided if they had capacity, alongside their best interests, values and relationships. The court must act in the person’s best interests. It will look at:

• a person’s known wishes, feelings, beliefs and values
• family and personal relationships
• medical and financial evidence
• any previous wills or statements made

The court may also appoint an independent ‘litigation friend’ to represent the person’s interests.

What is the process?

Applying for a statutory will involves:

• gathering evidence on the person’s capacity, assets, and family situation
• preparing a draft will that meets their likely wishes and needs
• notifying interested parties (e.g. family members)
• applying to the Court of Protection
• attending a hearing (in some cases)

We guide clients through every step and handle all the paperwork and legal arguments.

Capacity and the Court of Protection

Mental capacity is central to Court of Protection proceedings. Capacity is decision-specific and time-specific, meaning a person may lack capacity for some decisions but not others.

How is capacity assessed?

Capacity is time and issue specific and is assessed under the Mental Capacity Act 2005. A person is deemed to lack capacity in relation to a matter if they cannot:

• understand information relevant to the decision
• retain that information
• use or weigh that information
• communicate their decision

Capacity and disputes

Capacity assessments are often key where:

• decisions are challenged by family members
• Lasting Powers of Attorney are disputed
• applications for statutory wills are being made
• there are of allegations of undue influence or financial abuse

Best interests decisions

Where a person lacks capacity, decisions must be made in their best interests, taking into account their past and present wishes, feelings, beliefs and values.