Wills & Trusts Law Reports | Winter 2023 #193On 9 May 2014, the Adult granted a continuing and welfare power of attorney in favour of her son and one of her daughters (who consented to be attorneys) (the First PoA). A statutory certificate confirming the Adult’s capacity to grant the First PoA was signed by her solicitor. The First PoA was registered by the Office for the Public Guardian (OPG) on 21 June 2014.
On 17 November 2020, a consultant psychiatrist diagnosed the Adult with early Alzheimer’s Dementia, and assessed the Adult as having a short-term memory of 5-10 minutes. The psychiatrist gave evidence that the Adult wa...
Wills & Trusts Law Reports | Autumn 2022 #188The sole trustee of the X Foundation Trust, a Bahamas trust, applied to the court for directions pending the determination of two sets of proceedings before a foreign court (the foreign court proceedings), with respect to the mental capacity of the settlor of the trust (the settlor).
The trust was a discretionary trust whose class of beneficiaries included the settlor and members of his family, as well as companies which received distributions from the trust to pursue charitable activities. The trust instrument provided for a protector, termed an appointor, with power to appoint a...
Denzil Lush sheds light on the origins of local authority involvement in mental incapacity proceedings Commissioner Murray was wrong in believing that Cohen’s was the first case of its kind. An almost identical petition had been filed 30 years earlier in 1811, in the matter of Ann Pettman. The primary purpose of this article is …
Continue reading "Mental capacity: A history of local authority interventions"
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Zoe Culverwell highlights capacity issues in financial proceedings including capacity to enter into an agreement Lawyers must keep capacity under review throughout the whole retainer as it is not something that can simply be addressed at the outset of the case and then forgotten about. Mental capacity issues are increasingly common in financial remedy proceedings …
Continue reading "Mental capacity: Come to an understanding"
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Wills & Trusts Law Reports | Spring 2020 #178Mrs Maudlin Bascoe (T) died on 29 August 2015. Cs sought to prove a will dated 27 April 2005 (the 2005 will) naming them as executors. C1 was T’s son. C2 was T’s former solicitor and the draftsman of her wills from 1988 2005. D was T’s daughter. T also had two other children – a son, G, (who pre-deceased her) and a daughter, B (who died after T in 2017).
Under the 2005 will, D received a legacy of £100. There was an earlier will dated 25 October 1992 (the 1992 will) leaving D a legacy of £10,000 the validity of which D did not dispute at trial.
D challenged the 2005 will, a...
Wills & Trusts Law Reports | Winter 2018 #170DMM 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) 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) 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 af...
Wills & Trusts Law Reports | Autumn 2017 #169The 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) As to MC, the donor at s7 of the LPA had instructed that ‘Any financial decisions up to the value of £150.00 c...
Wills & Trusts Law Reports | May 2016 #159AMH was born on 31 October 1936. She lived with her husband in Greenwich until 1999, when they retired and moved to Kent. They had three children, Audrey, Kevin, and Robbie. Robbie died in 2005. Robbie’s son Rocky lived with AMH between 1990 and 2013, and was very close to her. AMH’s husband died in 2007. AMH suffered from Lewy Body dementia, chronic obstructive pulmonary disease and epilepsy, and lived in a nursing home in Westgate-on-Sea. Her care was funded by NHS Continuing Health Care.
On 18 March 2002, AMH and her husband made mirror wills in which they left thei...
Wills & Trusts Law Reports | April 2016 #158This was an appeal from a decision to grant summary judgment to the claimant (C) in a claim against the defendant (D) for outstanding care home fees.
C is a company that owns and runs care homes registered under the Care Standards Act 2000 including a residential nursing home in Southall specialising in caring for elderly persons suffering from dementia (the Home). The majority of referrals to the Home are made by the local authority (LA). Mr Shafi was a resident of the Home from 29 January 2010 until his death on 28 March 2012. The total outstanding fees claimed amounted to £...
Wills & Trusts Law Reports | April 2015 #148PC was born in 1936. She suffered from vascular dementia and Alzheimer’s disease. In June 2009, she had executed an LPA for property and affairs, appointing her sons, AC and JC, as her attorneys jointly and severally. The LPA was registered on 12 August 2009. In June 2013, an application to the Court of Protection was made by the Public Guardian (OPG) for an order revoking the LPA, and directing them to account to the OPG for their dealings under the LPA. The OPG had been informed that the attorneys had not been paying their mother’s care fees and that arrears had accumulated...
