Court of Protection: Skewed benefit

Louise Mathias-Williams explores a case where a windfall jeopardised the beneficiary’s living arrangements The judge was persuaded that it was in LMS’s best interests to authorise the proposed deed in order better to effect the testator’s intention to financially benefit her. Becoming entitled to an inheritance is, for most, a fortunate place to occupy, albeit …
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Court of Protection: Standing in the donor’s shoes

Justin Holmes reports on a case concerning the making of a deathbed statutory settlement to avoid the intestacy rules ‘CF had never been able to express any wishes, feelings, beliefs or values about what should happen to his estate after his death, and the judge had to do his best to put himself into CF’s …
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Re DMM [2017] EWCOP 33

Wills & Trusts Law Reports | Winter 2018 #170

DMM suffered from Alzeimer’s Disease. He wanted to marry his long term partner SD. EJ, one of DMM’s three daughters, brought an application for a declaration as to whether DMM had capacity to marry.


Held:


  1. 1) The fact that a new marriage revokes a will was information a person should be able to understand, retain use and weight to have capacity to marry.

  2. 2) Expert evidence had been produced concluding that DMM Had capacity to marry because he did understand his will would be revoked and the financial position of his three daughters would be affected by that...

The Public Guardian v Matrix Deputies Ltd & anor Neutral citation: [2017] EWCOP 14

Wills & Trusts Law Reports | Winter 2018 #170

This judgment concerned proceedings brought by the Public Guardian seeking (1) discharge of all appointments of Matrix Deputies Ltd (Matrix) and its employees DW and OM as property and affairs deputy; (2) the refusal of any pending applications; and (3) the appointment of either the local authority or a panel deputy instead. 


There was ultimately no contested hearing in this matter. The appointments of OM and DW were discharged and they were discharged from proceedings with their consent. Matrix continued to contest the applications until a matter of days before the final hearing...

The Public Guardian’s Severance Applications [2017] EWCOP 10

Wills & Trusts Law Reports | Autumn 2017 #169

The Public Guardian brought various consolidated applications for severance under para 11((3) of Schedule 1 of the Mental Capacity Act 2005 (the MCA 2005) in respect of various lasting powers of attorney which were potentially unlawful or ineffective by reason of the operation of s9 MCA 2005, which provides that an LPA is not created unless it is made and registered in accordance with Schedule 1 of para 19.

Held:

  1. 1) As to MC, the donor at s7 of the LPA had instructed that ‘Any financial decisions up to the value of £150.00 c...

Court Of Protection: Aiming to enable

Martin Terrell and Louise Mathias-Williams set out the lessons from the Public Guardian’s recent decision over severance applications ‘The element which unites the cases is the consistency of District Judge Eldergill’s approach in endeavouring to ensure that a donor’s intention as to how their affairs may be managed in the future is respected and upheld …
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Court Of Protection: Who is responsible?

Hannah Gearey outlines the points considered when there is a conflict between the authority of the deputy and trustees in the case of a personal injury trust ‘The issue that arose in this case was whether the capital element of the award should be dealt with by the court-appointed deputy or the trustees of the …
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Watt v ABC [2016] EWHC 2532 (COP)

Wills & Trusts Law Reports | January/February 2017 #166

This was an application to the Court of Protection concerning whether substantial damages awarded to ABC in a personal injury claim should be paid to and administered by ABC’s property and affairs deputy or should be held on revocable trust.

In prior litigation it had been common ground that ABC lacked litigation capacity but his capacity or the extent of his capacity to manage his financial affairs with appropriate support had been in dispute. This dispute was not decided due to the matter being settled. Subsequently a deputy was appointed by the Court of Protection upon th...

Court Of Protection: Best interests

Howard Smith summarises the position on the bestowing of gifts and other benefits when a person lacks capacity ‘In each case the deputy or the attorney must decide whether the size of any proposed gift is reasonable given the occasion on which the gift is made and the size of the estate.’ In cases where …
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Re A [2016] EWCOP 3

Wills & Trusts Law Reports | May 2016 #159

C wished to stand down as deputy for her aunt A, and a professional deputy be appointed in her place. The application was opposed by D, who was A’s nephew and C’s cousin.

A was 78 and was a member of a titled family. She suffered from schizophrenia and had undergone a frontal leucotomy in 1962. In 1959, A’s sister B had been appointed to be the committee of her person and of her estate. B subsequently became A’s receiver, and later her deputy for property and affairs. In 2012, B wished to stand down and for her daughter C to be appointed in her place. This ...