What we do
Court of Protection
The Court of Protection is a specialist Court that deals solely with issues relating to mental capacity. Every application to the Court requires a mental capacity assessment, usually submitted on a form known as a CoP3. All our assessors are recognised by the Court of Protection and unlike other providers we have never had a CoP3 declined.
Testamentary capacity is another way of saying capacity to make a Will. Testamentary capacity is not covered by the Mental Capacity Act (2005) and so requires another legal test known as Banks v Goodfellow. Surprisingly not all other providers are aware of this and continue to use the Mental Capacity Test as their benchmark. Woe betide them if they are ever challenged in court!
Capacity to litigate
Like testamentary capacity, capacity to litigate is not covered under the Mental Capacity Act (2005). Rather it is covered by case law, the most recent one being Dunhill v Burgin (2014). Most GP’s we spoke to were unaware of this case law or the need to use a test other than the Mental Capacity Act.
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 that provide an insight into someone’s cognitive state and wishes at the time. If you know your Will is likely to be contested, it is much easier (and more robust) for us to do an assessment whilst you are still alive but if your loved one didn’t, fear not, we can still help.
Lasting Powers of Attorney
Every Lasting Power of Attorney (LPA) has to have a person to confirm the person making the LPA understands what they are signing (mental capacity) and that they are not under duress. This is known as a certificate provider. As well as being the certificate provider we are also happy to witness the signing of the document at no extra cost.
If you are unsure if a person has the mental capacity to make an LPA we can also do an assessment prior to the instruction any solicitors to see whether it is going to be money well spent.
Challenges to Assessments
We are regularly asked to challenge mental capacity assessments done by other providers and local authorities. It is sufficient to say that we have never lost such a challenge.
Capacity to manage Property and Financial Affairs
Most applications to the Court of Protection involve the capacity to manage property and financial affairs. It is vital that these assessments are done as thoroughly as possible, identifying all the necessary issues that may arise. Failure to do so will result in a further assessment being required and additional expense and a longer wait for the outcome you or your loved one need.
Capacity to make health and welfare decisions
These sorts of assessments are increasingly on the rise and arguably one of the most important ones that a person will ever face. A badly done assessment could result in the wrong care and poor outcomes for you or your loved ones. The risk of getting it wrong just isn’t worth it.
Capacity to make a gift
This is another area that sits outside of the remit of the Mental Capacity Act (2005). Unbeknownst to most practitioners, although there is no specific test in law it is generally seen as being akin to Testamentary capacity in its need to satisfy the Banks v Goodfellow criteria.