Testamentary Capacity

Where there is a doubt about a person’s ability to make a will. I.e where they person suffers from any form of mental disorder, impairment or disturbances to the functioning of the brain, a Testamentary Capacity, which is another way of saying capacity to make a Will may be required. Testamentary capacity is not covered by the Mental Capacity Act (2005) and so requires another legal test, which was established in Banks v Goodfellow (1869).

Capacity to Litigate

Part 21 of Civil Procedure Rule (CPR rule 21) requires any person who conducts litigation to have a full capacity to litigate the whole process. Where the a litigating person lacks capacity, the law requires that he is treated as a protected person. Mental capacity to litigate assessment is not covered under the Mental Capacity Act (2005). Therefore, the Assessor must have a good understanding of the legal principles established in Masterman-Lister v Brutton & Co. in order to undertake such assessments.

Contentious Probate

Disputes sometimes arise after someone has died and proving or establishing the validity of the disputed Will may require the re-examination of the person’s mental capacity at the time of writing the Will. It is possible to pass an opinion on someone’s mental capacity to make a Will after they have died. This involves a close examination of medical notes and other information.

Certificate Providers – Lasting Powers Of Attorney

A lasting power of attorney ( LPA ) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. As a  Doner, you can officially appoint someone you trust to make decisions for you when you are not able to do so, due to lacking capacity. There are 2 types of LPA: health and welfare and property and financial affairs. By appointing person(s) you trust, enables you to give another person the right to make decisions about your care and welfare as well as to decide on financial and property matters.

Every Lasting Power of Attorney (LPA) has to have a person to confirm the person making the LPA understands what they are signing and not under duress, known as a certificate provider. We provide certificate for a fee, after explaining the LPA documents to ensure that you fully understand what you are doing.

COP3

COP3 is a mental capacity assessment to determine the relevant person’s (the person the application relates) mental capacity of the matter to be decided by the Court. If you are applying to start proceedings with the Court of Protection, you must file COP 3 form with your COP1 application form.. The assessment must contain current information. We complete the Part B and the person making the application must complete Part A of the COP3 form.

We routinely complete COP3 for deputyship and statutory will applications to the Court of Protection.

Capacity To Make A Gift

This requires the assessor to understand the sliding scale of capacity to make a gift according the existing caselaw. The level of understanding required varies depending upon the particular transaction in question. If someone makes a very small gift (in terms of value and subject matter) in relation to their assets as a whole, then they only need to understand that they are gifting an item and that they will not get it back.

At the other end of the scale, if the gift is the person’s only real asset of value (for example, their home) then they must have the same understanding that is required when they make a will.