Contentious mental capacity and court of protection

Contentious mental capacity and court of protection

We can assist with contentious matters that arise when someone loses or is losing mental capacity. These types of applications usually take place in the Court of Protection, which makes specific decisions, or appoints deputies to make decisions, on behalf of people who lack the capacity to do so themselves. Issues that we can help with include:

  • Bringing or defending claims for statutory wills (i.e. wills put into place by the Court of Protection for a person who has lost the capacity to make a will themselves), both urgent and less urgent
  • Advising on contested Court of Protection matters, including claims relating to approval of gifts (prospective and retrospective), inappropriate conduct by attorneys, carers and deputies or financial abuse
  • Advising on contested and/or urgent deputyship applications and disputes regarding the registration of Lasting and Enduring Powers of Attorney (LPA / EPA)
  • Advising on urgent or contentious applications for orders to sell or transfer property for protected parties
  • Advising on the outcome of capacity assessments, including family and business governance in light of incapacity, or assisting with overseas assets
  • Advising on applications for authority to litigate
  • Advising on the recognition of foreign powers of attorney in England and Wales and other cross-border capacity issues including recognition of deputyships cross-border
  • Advising on investigations by the Office of the Public Guardian and applications related to such investigations

Many of the trust and estate disputes we act on also involve related capacity issues, including:

  • Advising fiduciaries or beneficiaries where a fiduciary, power holder or other interested party is losing or has lost capacity, including applications to replace trustees, approve decisions, or vest assets
  • Acting on behalf of protected parties and minors to apply to approve a settlement
  • Capacity issues relating to probate or estate related claims

Key experience

Acted for a beneficiary of an existing will

We acted for a beneficiary of an existing will made by a protected party (“P”). P’s deputy had applied for a statutory will, which would have disinherited the beneficiaries of P’s will and left her estate to a new charitable trust (to be administered by the deputy). Despite evidence to the contrary, the deputy contended that our client had abused his professional position to become a beneficiary. We succeeded in having the application dismissed and our client recovered his costs from the deputy personally (rather than from P’s estate).

Acted for a party being investigated by the OPG

We acted for a party being investigated by the OPG after complaints by their sibling regarding their actions as attorney for their mother, both in relation to financial and welfare matters. We advised on the appropriate response to the OPG and the action to be taken to regularise the position, and ensure that the client was able to act in the mother’s best interests going forward.

Application on behalf of the son of a deceased deputy

We made an urgent application on behalf of the son of a deceased deputy, to be appointed in place of his father, and for authority to sell a property. The deceased died unexpectedly during the sale of the property. Our experience ensured that the application was expedited so that the sale could proceed as soon as possible.

Meet our team