07.06.16

Question:

My son received a sum of money for an accident he had as a child and I manage the money on his behalf as his Deputy.  He is now 35 and I’m concerned what will happen to his funds on his death?  He has also had no contact with his father since he was a child.

Answer:

You mentioned in your question that you’re managing your son’s money as his Deputy.  This would mean that, in your original application to the Court of Protection, it was determined that your son lacked capacity to manage his own affairs.  We will therefore assume that your son doesn’t have the required mental capacity to make a Will and set out his wishes.

Where an adult lacks capacity to make a Will, it’s possible to apply to the Court of Protection for their permission to make a Will on behalf of that person.  This is known as a Statutory Will and it’s treated as if the person had capacity to make a Will and had put a valid Will in place.

It’s possible to make an application on behalf of your son on the basis that he is not able to make a Will and that there are people or charities that you believe your son might want to inherit his assets.

If it’s an option, your son should be involved in the process.  The Court will want to ensure the proposed Will is in your son’s best interests and they will take into account a number of factors including the facts about your son and his family. Also any wishes or feelings he may have and the views of any people interested in your son’s welfare. You also mentioned that your son’s father has had no contact with him since he was a child and so it might be that your son would not want any part of his estate to pass to him in the event of his death.  This information could be submitted to the Court to explain the situation and this would be taken into consideration before they agree the Statutory Will.

The application to the Court of Protection can be made by you, as your son’s Deputy, and will need to include evidence that your son lacks capacity to make a Will, a witness statement giving the details of your son’s situation, any other relevant information to the application and a copy of the proposed .

The Court will make the final decision about the contents of the Statutory Will and will set out who is authorised to sign it on behalf of your son.  The Will must be validly signed, in the presence of two independent witnesses and it will then be sealed by the Court.

For more information about the issue highlighted in this Q&A series please contact us.