Q&As

Where the Court of Protection has made an order appointing a deputy under section 16(2)(b) of the Mental Capacity Act 2005 (MCA 2005), but P has, in the opinion of their solicitors and medical advisers, testamentary capacity, can P make a valid Will without first seeking a declaration of testamentary capacity under MCA 2005, s 15(1)(a)?

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Published on LexisPSL on 19/07/2021

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Where the Court of Protection has made an order appointing a deputy under section 16(2)(b) of the Mental Capacity Act 2005 (MCA 2005), but P has, in the opinion of their solicitors and medical advisers, testamentary capacity, can P make a valid Will without first seeking a declaration of testamentary capacity under MCA 2005, s 15(1)(a)?

Where the Court of Protection has made an order appointing a deputy under section 16(2)(b) of the Mental Capacity Act 2005 (MCA 2005), but P has, in the opinion of their solicitors and medical advisers, testamentary capacity, can P make a valid Will without first seeking a declaration of testamentary capacity under MCA 2005, s 15(1)(a)?

By section 16(2) of the Mental Capacity Act 2005 (MCA 2005), the Court of Protection has the power to make decisions on behalf of a person (P) or to appoint a deputy 'to make decisions on P's behalf in relation to the matter or matters'.

MCA 2005, s 16(2) is subject to the provisions of MCA 2005, s 16(1), which provides that MCA 2005, s 16

'applies if a person ("P") lacks capacity in relation to a matter or matters concerning—

(a) P's personal welfare, or

(b) P's property and affairs.'

MCA 2005, s 2 defines 'lack of capacity' for the purposes of MCA 2005. MCA 2005, s 2(1) provides that, for the purposes of the Act, 'a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain'. The remaining provisions of MCA 2005, s 2 provide further interpretation.

If the Court

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