Capacity and Court of Protection disputes

We have a wealth of experience in dealing with capacity cases, including disputes in relation 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.

We have a specialist disputes team who can assist in cases where a dispute has arisen relating 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.

Disputes can arise between attorneys already appointed by a donor, or as to whether an attorney should remain appointed for an individual who lacks capacity. Such disputes can occur when an LPA or EPA is being registered but can also arise some time after this event. 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.

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

If a person does not have the necessary testamentary capacity to make a will, then the court can make an order authorising a person to execute a will on their behalf. The court will consider what would be in the best interests of the person and this includes how they would be remembered after their death. We can assist when the parties involved cannot agree on what would be in the best interests of the person lacking capacity and therefore the terms of their proposed will.

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 in circumstances when a proposed gift is being disputed.

Attorneys and deputies may have the authority to sell the property belonging to the person lacking capacity. However, on occasion an application to the Court of Protection is required in order to obtain approval for such a transaction. This could be because the sale is at below market value or because a family member wants to buy it.

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

This may be in the case of persons 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.

Our Court of Protection team is highly ranked in The Legal 500 (2023), praised in particular for their 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.