Blog
Capacity to enter into a prenuptial agreement
Cate Maguire
Disputes around the care of vulnerable loved ones and seeking to ensure that their best interests are protected can be challenging and distressing. Our team of expert lawyers in the field of Court of Protection disputes are well placed to assist you in navigating these difficult times.
We bring and defend applications in the Court of Protection including disputes over an appointment of a deputy or attorney, disputes around a vulnerable person’s mental capacity, challenging gifts made by a deputy or attorney, disagreements arising in relation to statutory wills, challenging personal welfare decisions and disputes arising in relation to whether the deputy or attorney is acting in the best interests of a vulnerable person.
We also act in related civil action arising as a consequence of allegations concerning coercion or undue influence, rogue deputies or abuse of a Lasting Power of Attorney, such as breach of trust and/or fiduciary duty claims. These claims often extend to making applications for an injunction to prevent the perpetrator from disposing of or dealing with misappropriated assets.
Where a dispute is ongoing, we act as independent deputies, trustees or litigation friends to ensure that the interests of the person who lacks capacity and any disputed assets are protected during the litigation. Appointing a neutral professional can assist in resolving disputes between the parties.
Our Court of Protection team also has the unique benefit of being able to work closely alongside our Media & Reputation and Criminal Litigation teams. Increasingly, we are being instructed in Court of Protection matters where this additional expertise is needed because of the serious allegations of wrongdoing or the high profile nature of the people involved.
We are also experienced in all non-contentious aspects of Court of Protection work.
For more information, look at our frequently asked questions on disputes in the Court or Protection below and read our recent blogs.
Examples of recent cases
- Acting in a multi-million pound expedited statutory will challenge in the Court of Protection concerning allegations of undue influence.
- Acting in a high profile health and welfare case in relation to contact arrangements and discharge into the community at end of life.
- Assisting a deputy in recovering assets for a protected party who had been subject to financial abuse.
- Acting for high profile clients in relation to privacy and open justice issues arising out of Court of Protection proceedings.
- Acting for an EU citizen in a multi-million pound jurisdiction dispute over a protected party’s property and affairs in the Court of Protection.
- Acting for attorneys defending allegations of financial abuse in the Court of Protection.
FAQs
What is the difference between a power of attorney and deputyship?
An individual makes a power of attorney when they have capacity so that the appointed attorney can look after their property and financial affairs and/or health and welfare if they lose capacity in the future. A deputy is appointed by the Court of Protection after an individual has lost capacity.
What should I do if I disagree with another family member about who should make decisions on behalf of my parent who lacks capacity?
If your parent lacks capacity any decision made on their behalf should be in their best interests. If your parent has an attorney or court appointed deputy then they are responsible for making the best interests decision. If you do not agree with that decision and are unable to reach an agreement, if the decision is sufficiently serious you may need to ask the Court of Protection to assist in the decision making process. You should seek legal advice to ascertain if this is necessary.
What can I do if someone without capacity is being exploited financially?
If someone without capacity is being exploited financially and they have an attorney or court appointed deputy it will be for that individual to take steps to resolve the situation, whether by reporting the matter to the police or considering taking action in the Court of Protection (which has powers of investigation) or civil courts (largely for recovery of assets). If someone without capacity is being exploited financially by an attorney then it should be reported to the Office of the Public Guardian (which also has powers of investigation). Similarly if someone without capacity is being exploited financially by a court appointed deputy an application should be made to the Court of Protection.
Can attorneys or deputies be removed if they are not acting in the best interests of a person without capacity?
Yes. If a deputy or attorney has not acted in the best interests of a person without capacity, has become incapable of acting as a deputy or attorney or has acted outside of their powers they can be removed.
What is a statutory will? Can you challenge it?
A statutory will is made by the Court of Protection on behalf of in individual who lacks capacity. It can be challenged for various reasons including if you are concerned that it does not reflect what the individual who lacks capacity would have wanted or if the statutory will is being made for someone that you believe has the capacity to make their own will.
How do costs in work in the Court of Protection?
The general rule in cases arising in relation to the property and financial affairs of an individual who lacks capacity is that the all parties costs of the proceedings will be met by the incapacitated individual. In cases involving health and welfare the costs are met by the respective parties. The Court of Protection has discretion to depart from the general rules.
Katherine Pymont
Partner
Jemma Garside
Partner
Simon Hardy
Partner
Kiran Vasudeva
Partner
Laura Phillips TEP
Legal Director
Sophie Mass
Senior Associate
Anna O’Carroll
Senior Associate
Kate Salter
Senior Associate
Sophie Cook
Senior Associate (FCILEx)
Lauren Eyre
Senior Associate
Sameena Munir
Senior Associate
Cally Brosnan
Associate
Lavanya Loganathan
Associate
Melissa Joseph
Associate
Latest blogs & news
Action for Brain Injury Week – fluctuating capacity
The Child Brain Injury Trust reports that every 90 seconds, someone in the UK is admitted to hospital with an acquired brain injury, and every 15 minutes, a child in the UK acquires a brain injury. While many will make a full recovery, for others, this may impact on their ability to make certain decisions as adults.
Privacy series part two: Court of Protection – An open secret?
Once referred to as a “secret court”, the Court of Protection is increasingly limiting its privacy and is arguably becoming more open.
Making a will following a diagnosis of dementia and avoiding validity challenges
It is sometimes assumed that a will cannot be valid if it was made by a person who suffers from dementia. However, many people retain capacity to make a will for a significant period following their diagnosis.
Challenging the registration of a Lasting Power of Attorney based on lack of capacity
People often consider executing a Lasting Power of Attorney (“LPA”) when they reach their later years, and their chances of suffering from a condition which may affect their cognitive ability increases. It is necessary for a donor (the person granting the LPA) to have capacity at the time it is signed pursuant to section 9(2)(c) of the Mental Capacity Act 2005 (“the 2005 Act”). If someone’s capacity has started to fluctuate, this can result in uncertainly as to whether the LPA was validly executed.
Recovering assets misappropriated by an attorney or deputy
People with dementia are at higher risk of financial abuse and in our experience, the majority of allegations of financial abuse and misappropriation of monies against vulnerable individuals are against the very people trusted to look after their affairs. Sadly, the volume of those allegations is on the rise.
Red flags to look for when spotting financial abuse
Mental Health Awareness Week, with its focus this year on the theme of loneliness, is a timely reminder of our duty to protect loved ones and elderly clients who might be vulnerable to financial abuse and undue influence.
Looking out for financial abuse of the vulnerable
Financial abuse of older and vulnerable adults is sadly becoming more prevalent
Abuse of Power of Attorney: the importance of staying vigilant in the current COVID-19 climate
The self-isolation and social distancing bought about as a result of the coronavirus pandemic leaves the elderly and incapacitated even more vulnerable to financial abuse. It is has been well reported that fraudsters are seeking to take advantage of the current situation whether via the internet, on the phone or in person but it also seems likely that this period will sadly see a rise in abuse of power of attorney by those closer to home.
Court of Protection Update – When is it in P’s best interests to terminate a pregnancy?
The Court of Appeal has handed down judgment in the much publicised case of Re: AB (Termination of Pregnancy)[2019] EWCA CIV 1215.
Abuse of Power of Attorney: Safeguarding against the increasing threat
Last month it was reported by the BBC that a consultant psychiatrist, Zholia Alemi, had been found guilty of four fraud and theft charges (and subsequently jailed for five years) having “redrafted [an elderly patient’s] will and fraudulently applied for power of attorney” in an effort to benefit from her estate. Alemi is said to have met the patient at a dementia clinic.