Court of Protection: How does marriage effect the validity of a Will?

Wills & weddings; a difficult marriage…

A recent reported case in the Court of Protection has highlighted the effect of a marriage on the validity of a Will, and the different tests that apply to capacity for certain circumstances.

In this case, a father of three Daughters in his mid-eighties had given one of his Daughters a Lasting Power of Attorney before he developed Alzheimers. He had also drawn up a Will in 2013, leaving his long-term partner (who was in her seventies) the following:

(i) lump sum of £300,000,

(ii) the majority of his Pension, and

(iii) the right to live in his home for two years,

The Residue of his £1.7 million Estate would be divided equally between his three Daughters.

The father subsequently indicated a wish to marry his partner. The Daughter who was the Attorney applied to the Court for an injunction to prevent the marriage. An interim injunction was granted in 2017, before the case was then transferred to the Court of Protection. The case is interesting for a number of reasons.

1. It considers the effect of a marriage on the validity of a Will. When a person marries, any Will made prior to the date of marriage is revoked (unless it is made in contemplation of the marriage). Accordingly, unless the person then makes a new Will after the marriage, on their death, their Estate will be subject to the Rules of Intestacy.

2. In this case, under the Rules of Intestacy, his new wife would receive a Statutory Legacy of £250,000, together with half of the Residuary Estate. The other half of the Residuary Estate would be divided equally between his three Daughters.

3. It considers the different tests of capacity that apply in certain circumstances. The Court of Protection decided, after obtaining assessments from both an independent assessor and a consultant psychiatrist, that he lacked the necessary capacity to make a valid Will, but had capacity to marry. The legal threshold for capacity to marry is far lower than what is required to make a valid Will.

The decision to marry is not considered particularly complex. All the person has to understand is that they are getting married to the person they wish to marry and that they are not already married. They do not need to understand the complexities of how the marriage may affect their Will or financial circumstances.

To make a Will, the person has to understand:

(i) the nature of the act of making the Will,

(ii) the effect of making the Will,

(iii) the extent of their Property and Estate, and

(iv) the potential claims of others against their Estate.

Because of the Court of Protection’s decision, the father was considered able to marry his Girlfriend, but unable to then make a new Will.

The Daughter will continue to be her father’s Attorney, managing his Property and Financial Affairs, despite him now having a new Wife.

The Court of Protection urged the parties to try and put the dispute behind them and focus on care, as the father is now suffering from a degenerative disease and is likely to need a lot of help in the future.

If you are involved in or dealing with an Estate where there are disputes relating to Powers of Attorney, capacity issues, Court of Protection proceedings, or issues relating to marriage and its effect on Wills, then please contact our Contentious Probate Team for a FREE assessment on 0808 139 1606 or by dropping us an email. 

 

Court of Protection is criticised for secrecy

The Court of Protection has been described as “shadowy” and the most secretive in Britain.

Controversy has heightened following the case of a grandmother in her 70’s who was sentenced to six months in jail by the Court of Protection. It sparked immediate demands for the publication of the Court’s ruling which one journalist said beggars belief.

The woman was sentenced after refusing to sign a letter authorising British social workers to return to England an 81 year old man from his native Portugal against his wishes; a demand that she regarded as “quite improper”.

Although the man in question suffers from dementia he had travelled to Portugal with the woman quite legally. The UK courts have no power to order his return.

Upon his return he resided in what is reported to be a well-run Portuguese care home.

The woman had power of attorney over the man’s affairs. Exercising her powers as attorney she put his house in Britain up for sale, the proceeds of which would have been more than sufficient to cover the fees of the care home.

However the local authority in Britain obtained a High Court ruling that the man lacked “mental capacity”. This enabled them to block the transaction and order that responsibility for his financial affairs be passed to the Official Solicitor.

There followed a series of court orders requiring the man to be brought back to an English care home, but because he was outside UK jurisdiction these orders could not be enforced.

In June of last year a judge drafted a letter to be signed by the woman. The terms of the letter required the woman to  arrange for the man to be handed over to UK social workers. The judge warned that if she did not sign the letter she would be sent to jail.

Despite this threat the woman held her nerve and refused to sign the letter on the basis that it was “wholly improper and dishonest”. She took particular exception to the allegation that it was in the man’s “best interests” to return to England.

The woman’s refusal to comply resulted in a judge sending her to prison for six months. She was arrested by the police in front of her young grandchildren.

Critics of the Court of Protection’s unswerving approach in this case and others have pointed to the huge public cost of these proceedings which it is thought are likely to have run into hundreds of thousands of pounds, all for very little effect.

the practical effect of the court proceedings was to leave an elderly woman languishing in prison at the public’s expense while the man remained residing in his Portuguese care home with his family struggling to pay the fees because his assets in Britain had been seized by the court.

Calls grow for greater transparency in the Court of Protection.

If you require legal assistance with a Court of Protection issue then you can call our free legal helpline on Freephone 0808 139 1606. Alternatively you can send us an email.

 

Court of Protection jails elderly attorney

Partner, Naomi Ireson
Partner, Naomi Ireson

Slee Blackwell lawyer Naomi Ireson reviews recent press reports concerning the Court of Protection.

The Court of Protection is in the news again with journalists describing the court as “shadowy” and the most secretive in Britain.

The latest controversy surrounds the case of a grandmother in her 70’s, who has been sentenced to six months in jail by the Court of Protection. This has sparked demands for the publication of the Court’s ruling which one journalist has said beggars belief.

The woman was sentenced after refusing to sign a letter authorising British social workers to return to England an 81 year old man from his native Portugal against his wishes; a demand that she regarded as “quite improper”.

Although the man in question suffers from dementia he had travelled to Portugal with the woman quite legally. The UK courts have no power to order his return.

Since returning he is now living in what is reported to be a well-run Portuguese care home.

The woman had power of attorney over the man’s affairs. Exercising her powers as attorney she put his house in Britain up for sale, the proceeds of which would have been more than sufficient to cover the fees of the care home.

However the local authority in Britain obtained a High Court ruling that the man lacked “mental capacity”. This enabled them to block the transaction and order that responsibility for his financial affairs be passed to the Official Solicitor.

There followed a series of court orders requiring the man to be brought back to an English care home, but because he was outside UK jurisdiction these orders could not be enforced.

In June of this year a judge drafted a letter to be signed by the woman. The terms of the letter required the woman to  arrange for the man to be handed over to UK social workers. The judge warned that if she did not sign the letter she would be sent to jail.

Despite this threat the woman held her nerve and refused to sign the letter on the basis that it was “wholly improper and dishonest”. She took particular exception to the allegation that it was in the man’s “best interests” to return to England.

The woman’s refusal to comply has resulted in a judge sending her to prison for six months. It is reported that she was arrested by the police in front of her young grandchildren.

Critics of the Court of Protection’s unswerving approach in this case have pointed to the huge public cost of these proceedings which it is thought are likely to have run into hundreds of thousands of pounds, all for very little effect.

As the situation currently stands the elderly woman is languishing in prison at the public’s expense while the man remains residing in his Portuguese care home. How long he will be able to remain there is uncertain as his family are struggling to pay the fees because his assets in Britain have been seized by the court.

The case will fuel demands for greater transparency in the Court of Protection and detailed answers to the questions raised.

To discuss your Court of Protection issue with partner Naomi Ireson call us on 0808 139 1606 or simply send us an email.

Lasting Powers of Attorney: Can an attorney be removed?

We are regularly consulted about disputes involving attorneys appointed under a Lasting Power of Attorney. One popular question is whether an attorney can be removed from office.

The Court’s powers under the Mental Capacity Act 2005

The law which regulates this area is Section 22 of the Mental Capacity Act 2005. This states that where an attorney’s behaviour  contravenes his authority or is not in the donor’s “ best interests” the court can revoke the Lasting Power of Attorney in relation to any particular attorney.

Best interests

So what does the term ‘Best interests’ actually mean? Section 4 of the Act provides guidance.

It says that in determining a donor’s best interests the donor should be encouraged to participate in the decision making process, even if they are unlikely to regain capacity.

Consideration must also be given to the donor’s past and present wishes and feelings, especially any written expression of wishes that may have been made when they had capacity.

Furthermore the views of those responsible for the donor’s care are to be taken into account in determining what is in their best interests.

The case law

Unfortunately there is not a great deal of case law in this area.

 In Re Buckley [2013] EWCOP 2965, an attorney acted under the belief that the donor would have wanted her to invest £88,000 in a reptile breeding business.  The judge however regarded the business as ‘high-risk’ ruling that it was a breach of fiduciary duty and was not in the donor’s best interests.

In Re OB [2014] EWCOP 28, an attorney used the donor’s funds to convert her own property to make it more suitable.  The judge concluded that the attorney was taking advantage of her position and therefore not acting in the best interests of the donor.

In the absence of case law mirroring the circumstances of a particular case the specific facts need to be carefully considered with an appreciation that best interests are to some extent subjective.

Disclaimer

When dealing with an application the court can entertain a disclaimer from one or more attorneys. This might be appropriate where an attorney proposes that a dispute be resolved by appointing a professional attorney to act going forward.

Who pays the legal Costs?

The general principle is that where proceedings concern a donor’s property and affairs the costs of the proceedings will be paid by the donor or their estate.

However the court can depart from this general rule ‘if the circumstances so justify’.

In considering whether it is justified to do so consideration is given to a range of factors including the conduct of the parties and whether a party has succeeded on their case

When looking at conduct the court will consider whether it was reasonable for a party to pursue a particular issue and the manner in which they have dealt with it

Unlike the position in civil litigation, costs do not ‘follow the event’ in the Court of Protection. So a winning party cannot assume the losing party will be ordered to pay their costs.  The deciding factor in any consideration of legal costs is often reasonableness rather than who won or lost It is therefore important for parties to bear this in mind during the course of any dispute.

If you require guidance on removing an attorney or a dispute involving a Lasting Power of Attorney give us a call on 0808 139 1606 or send us an email with details of the dispute.

 

Lasting Powers of Attorney and mental capacity

Assessing a donor’s capacity

When creating an LPA the donor must have the requisite mental capacity to make a power of attorney. Donor’s should be aware of the implications of their actions and the risk of exploitation.

When assessing capacity to create an LPA our specialist lawyers will refer to sections 2 and 3 of the Mental Capacity Act 2005 along with other guidance.

Where the donor’s capacity is doubted

If there is doubt about the donor’s mental capacity, a medical expert can be instructed to carry out a mental capacity assessment.

Where an LPA is being contested and attempts to resolve the dispute fail, the matter may have to be determined by the Court of Protection.

Donors can give written consent in advance authorising their lawyer to contact their GP or another medical practitioner should the need for medical evidence arise at a later date.

The functional and time-specific test of incapacity

The provisions of the Mental Capacity Act do not set out a readily identifiable point at which the donor of an LPA is deemed to lack mental capacity.

The Act has a ‘ functional and time-specific’ test of incapacity. This means capacity will vary according to the particular decision to be taken at a particular time.

So, a donor could have sufficient capacity to make decisions concerning routine household spending but at the same time lack capacity to make a far reaching decision such as selling their home. Furthermore, their capacity to make these decisions may be liable to change – either improving or becoming worse. As a result there is unlikely to be one particular point at which a person loses capacity to make all decisions.

The Mental Capacity Act promotes a joint approach to decision making, requiring the attorney and the donor to work together. It is always to be assumed that a donor has the requisite mental capacity to make a decision, unless it can be established that they lack it.

Donors shouldn’t be treated as being unable to make a decision unless all practical steps have been taken to help them do so. If necessary, decisions should be deferred and/or further assistance arranged,; especially with health and welfare LPAs or where it has been specified that a property and affairs LPA will only become valid upon incapacity arising.

Attorneys should act in the donor’s best interests

If a donor does lack capacity to make a particular decision, the Mental Capacity Act requires attorneys to always act in the donor’s ‘best interests’.

The Act contains a checklist of factors that must be considered, including consulting with relatives and carers as well as permitting and encouraging the donor to participate in the decision making process as fully as possible.

 

Contact us for details of our fixed price LPA creation service.

And if you are involved in a dispute involving an LPA and mental capacity issues then you can call our helpline on 0808 139 1606. Alternatively please feel free to drop us an email with your details.