Wills and trusts - advice and support

[bmuggers]

Hi Katherine,

My parents are currently applying for finance and welfare deputyship for my brother, who has a severe learning disability and lacks all forms of mental capacity.

We have filled in the COP forms (1, 1A, 1B, 3 & 4), but were also advised that we needed to fill in COP 24, which is a witness statement. We are confused about what we have to put in this witness statement and cannot find any guidelines online. We had previously outlined our reasons for applying for deputyship in COPs 3 & 4 in the 'further information' and 'personal statement to the court' sections, but should this go in the witness statement instead?

Any advice would be greatly appreciated

Many thanks

Beccy

[KatherineMiller]

Hi Beccy

Thank you for your query.

The witness statement (COP24) allows your parents, as the people applying for the Order, to give more information about your brother's situation to the Court of Protection. A witness statement can be completed by your parents and by other people who are able to give relevant information. It also allows your parents to state why they feel that appointing them as the Deputies is the right decision for your brother.

COP3 is the Assessment of Capacity and the 'further information' section allows them to give any relevant information about your brother's capacity.

COP4 is the Deputy's Declaration and the 'personal statement' section is for the proposed Deputies to set out why they wish to be the Deputies.

The information provided on the forms needs to be specific to your brother's situation and needs to demonstrate to the Court of Protection why a Deputy Order is appropriate in the circumstances.

I hope that is helpful but please let me know if you have any further queries.

Kind regards

Katherine

[Jayne_E_Ryan]

My son turns 18 this year. He has no concept of money and needs constant support. He has a savings account we set up when he was born, in his name with me as his trustee. I am concerned that benefits such as job seekers that he will have access to as an adult, will be reduced or he will not qualify as he has "savings". Also, we have 2 other typical children, and currently our will is split 3 ways. We are concerned that when our son inherits,this money may have to be used to fund his care/ access to other services. Would it be better for him if we did not include him in our will? Also, I understand that once he is 18 we may be required some legal status to have a say in his medical and social care in the future. How do I obtain this and what are the options?

[KatherineMiller]

Hi Jayne
You have raised a few interesting points in your query so I have tried to address each of the issues separately.

1. Savings – if your son were to claim any means tested benefits or funding in the future then he would be financially assessed to check his eligibility. Therefore, his savings will be taken into account and, the effect on his eligibility will depend on the amount he has and the limits in place at the time. The capital limits are different depending on the type of benefit being applied for and more information is available on the gov.uk website.

2. Will – if you leave your son a share of your estate directly then any assets received by him will need to be taken into account in the financial assessment of his eligibility for benefits and funding. This is one of the reasons we recommend using a trust to make provision for him. A trust ensures that provision can be made for your son by trustees who you choose. The Wills and Trusts Team at Mencap can provide more detailed information on writing a Will and setting up an appropriate trust. They can be contacted on 0207 696 6925.

3. Decision making – you mention obtaining legal status regarding your son’s medical and social care in the future. I believe you are referring to your options regarding decision making on behalf of your son once he is an adult. The provisions of the Mental Capacity Act 2005 (MCA) set out how decisions can be made on behalf of a person who lacks mental capacity to make their own decisions. There are a number of principles that should be followed to ensure that decisions made for your son are done so in his best interests. As I have mentioned in a previous post it is possible, but not routine, to obtain a Deputy Order for Personal Welfare. The Court of Protection can appoint a person or people to act as a Deputy and make certain decisions on behalf of someone who lacks capacity. However, as the MCA provisions should be sufficient to deal with decision making on behalf of a person who lacks the mental capacity to make their own decisions, it is important to follow these provisions first. The Court of Protection will mainly consider situations where there is a particularly difficult or complex decision to be made, a dispute has arisen or there will be ongoing help needed. The Court will consider the circumstances of your son’s situation and the person applying to be the Deputy will need to provide evidence to the Court of the need for an Order to be issued.

I hope that gives you some initial information regarding each of those points but please do let me know if you would like any further detail.

Kind regards

Katherine

[Jayne_E_Ryan]

Thank you so much Katherine for your valued advice. Much appreciated.