Capacity and Court of Protection disputes

We’re often instructed at difficult times on very sensitive matters so we  understand the importance of giving clear, timely and practical advice.

We have a wealth of experience in dealing with capacity cases, including disputes relating to lasting powers of attorney (LPAs), enduring powers of attorney (EPAs), deputyships, statutory wills and other matters in the court of protection applications and deputies.

Our specialist disputes team can advise in cases where a dispute relates to a Court of Protection matter, such as attorney disputes, deputy disputes and the appointment of independent deputies, statutory will disputes, application for permission to make gifts, and applications for permission to make property transactions.

Attorney disputes

Disputes can arise between attorneys already appointed by a donor. Or it could relate to whether an attorney should remain appointed for an individual who lacks capacity. This can happen when an LPA or EPA is being registered or some time after. Proceedings may be needed in the Court of Protection, to ensure that the person acting is doing so in the best interests of the person lacking capacity.

Deputy disputes and the appointment of independent deputies

We can act in disputed applications in relation to the appointment or removal of a deputy.

Statutory will disputes

If someone doesn’t have the necessary testamentary capacity to make a will, then the court can make an order authorising another person to execute a will on their behalf. The court will consider what would be in their best interests including how they would be remembered after their death. We can help resolve issues when people cannot agree on what would be in the best interests of the person lacking capacity and therefore the terms of their proposed will.

Applications for permission to make gifts

Attorneys and deputies have limited powers by which they can make gifts, or an application can be made to the Court of Protection for approval of a more substantial gift. We can advise if a proposed gift is being disputed.

Applications for permission for property transactions

Attorneys and deputies may have the authority to sell property belonging to the person lacking capacity. However, sometimes an application to the Court of Protection is required to approve a property sale. This could be because the sale is at below market value or because a family member wants to buy it. We can advise on this process.

Many of our private client solicitors are specialists in issues affecting those who have lost the capacity to manage their affairs.

This may be people who already lack capacity (which may require an application to the Court of Protection), or those who want to plan ahead and make a lasting power of attorney.

Our Court of Protection team has the specialist experience to take on complex problems in the area of capacity, including the issues that arise when more than one jurisdiction is involved.

We’re highly ranked in The Legal 500, and praised in particular for our vast knowledge and excellent client services.

Many of our lawyers are members of professional organisations such as the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly, and the Association of Contentious Trusts and Probate Specialists (ACTAPS).

Richard Frimston is the Law Society representative to the European Committee of the Union Internationale du Notariat (UIN) and is currently Chair of the STEP EU Committee and Co-Chair of the STEP Public Policy Committee.

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