At Cleaver Fulton Rankin we have considerable experience in advising clients in relation to issues of capacity, both in terms of acting for those who have been diagnosed with dementia and other illnesses and in acting for the families and carers of those who are unable to make decisions for themselves. The main areas of work which we handle routinely in this area are applications for Controllership and Statutory Wills.

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Where a person (known as a ‘Patient’) is no longer able to manage their financial affairs, and have not appointed any person or persons to act on their behalf under an Enduring Power of Attorney, an application may be made to Court for a ‘Controller’ to be appointed to manage their day to day financial affairs. The application can be made by a relative, a friend or a professional advisor and in some cases will be a person chosen by the Court following a referral made by a social worker or other representative of a Health & Social Care Trust. Until a Controller is appointed the Patient’s assets will be frozen by the Court to prevent financial abuse.

An application for Controllership will include full details of a Patient’s assets, liabilities, income and outgoings and will need to be accompanied by medical evidence confirming that the Patient has lost capacity. Subject to service of notice on any interested parties and dealing with any objections that they might have, the Court will make an Order appointing the Controller and detailing the specific powers conferred upon them in relation to the management of the Patient’s financial affairs.

The powers of a Controller will cease upon the death of the Patient or following the appointment of a new Controller.

Statutory Wills

Where a Patient has lost Testamentary Capacity (that is, the capacity to make a will) it is possible for an application to be made to Court for a will to be made on their behalf. Such a judge-made will is known as a ‘Statutory Will’ and can be extremely useful in cases where a Patient would benefit from being able to undertake tax or estate planning by will, or where their family circumstances have changed significantly and account needs to be taken of such changes.

As with Controllership, an application for a statutory will would have to set out details of the Patient’s assets and liabilities, as well as their family circumstances and details of any current will or how their estate would be distributed under the rules of intestacy. Again, medical evidence would be required to prove that the Patient lacks testamentary capacity and the test applied by the Court would be whether the proposed statutory will is one which the Patient would have choose to make if they briefly recovered capacity. This is sometimes known as a ‘substituted judgement’ test.

If you would like any further information about Controllership, statutory wills or any other issues of adult mental incapacity please contact a member of our Private Client team.