What to do if an Executor lacks capacity...
When a loved one passes away, it is difficult enough to balance grief with the practicalities such as organising the funeral, informing the banks etc. This is made even more difficult when the person who has the authority to deal with the estate, the Executor, is unable to make decisions and carry out their role.
If the Executor who lacks capacity is appointed with others, the others can continue but they will need to provide evidence of the co-Executor’s incapacity when applying for the grant of probate. Problems arise if the incapacitated Executor is the only Executor appointed – for example, the spouse of the deceased.
Power of Attorney
If a registered Enduring or Lasting Power of Attorney is in place, the Attorney(s) can apply for the grant of probate as the Attorney of the incapacitated person. Again, evidence of the incapacity will be required.
No Power of Attorney
Where there is no Power of Attorney in place, the incapacitated person is unlikely to be able to have the understanding required to appoint an Attorney. In that situation, an application to the Court of Protection is required.
Deputyship
A Deputyship is similar to a Power of Attorney, but the Deputy (similar to an Attorney) is chosen by the Court rather than by the incapacitated person themselves.
Deputies who are already appointed do not have the authority to act as Executor for the incapacitated person. This is different to Powers of Attorney.
A Deputy should therefore apply to the Court of Protection for permission to administer the estate on behalf of the incapacitated person. At Lawson West, we have experience of these types of applications and so if you would like more information, please use the contact details at the bottom of this article.
If there is no Deputyship already in place then those closest to the incapacitated person need to consider whether an application should be made.
Where the Executor is also a major beneficiary of the estate, for example the surviving spouse, then someone will need to manage the inheritance that they are due to receive. In this case, it would be difficult to justify failing to apply for a Deputyship order at the same time.
If you are worried about the mental capacity of a loved one and want to discuss your options, please contact Lawson-West on 0116 212 1000
