Mental capacity

Mental capacity

Concerned that an elderly or vulnerable person no longer has the ability to make their own decisions? Our specialist mental capacity team can offer you support and guidance. We can also help you put plans in place to protect you and your family, should a loss of mental capacity occur in the future.

At Forsters, we take the time to understand the vulnerable person’s circumstances to ensure decisions are made in their best interests, whilst also ensuring practical solutions are found to meet their needs.

We advise individuals, families, attorneys, deputies and trustees on a range of issues including:

  • Planning for the future by putting Lasting Powers of Attorney (LPAs) in place for both welfare and financial decisions
  • Preparing wills for clients who have recently received diagnoses of dementia or other life-altering conditions, but who remain capable of making wills
  • Establishing trusts for vulnerable family members, including advising on the tax implications and any advantages or risks of doing so
  • Obtaining deputyship orders from the Court of Protection to assist with decision-making on behalf of individuals who do not have LPAs or Enduring Powers of Attorney (EPAs) in place
  • Advising attorneys (under both LPAs and EPAs) and Court-appointed deputies on the scope of their powers, including using the documents to manage an incapacitated person’s business interests
  • Making gifts on an incapacitated person’s behalf
  • Acting on concerns of improper action by attorneys and deputies.
  • Preparing applications for statutory wills
  • Using foreign powers of attorney in England and Wales, and using English LPAs to manage assets on behalf of individuals who have assets in Scotland
  • Managing trust matters where either the trustees or beneficiaries lack capacity

Working closely with other professionals, including medical experts, to provide holistic support, we can obtain assessments of an individual’s ability to make a range of decisions including giving gifts, executing wills and putting LPAs in place.

Where disagreements arise, our team can help to find workable solutions and, if necessary, apply to the Court of Protection to resolve matters.

Key experience

Estate planning

We acted for an individual whose decision-making capacity fluctuated due to her recent dementia diagnosis. She wished to delegate decision-making in relation to medical and care matters should she no longer be able to do so for herself. We met her and her family on several occasions, enabling us to satisfy ourselves as to her capacity to make such decisions. Our involvement allowed us to do everything possible to enable the client to make her own decisions, including timing the meeting to coincide with her lucid intervals, and attending her with a physician (to assess capacity) in a location where she felt comfortable. Our robust approach to the execution of the document meant there was no dispute when it needed to be used.

International issues

We advised a client on the use of an American power of attorney in Florida to manage the donor’s UK assets.

Trusts and capacity

We advised an individual on structuring his will to strike a suitable balance between the needs of a vulnerable child and her siblings’ interests. The planning ensured that the vulnerable child’s share of the estate was suitably protected, and the trusts on which it was to be held had the best possible chance of securing any favourable tax treatment available on her parent’s death as a result of her disability.

Advising attorneys and deputies

We advised attorneys who had arranged sizeable gifts on behalf of someone whose capacity was in doubt, when the gifts were challenged by the Office of the Public Guardian. We worked constructively with all parties involved to resolve the matter.

We advised the attorneys and business partner of an individual whose rapid decline in cognitive function left him unable to complete the proposed sale of the business for over £50 million. We worked with the attorneys, the directors of several group companies and trustees of the company pension scheme to ensure that the sale could be completed as planned.

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