Court of Protection & Capacity Law - Boodle Hatfield

Your lawyers since 1722

Court of Protection & Capacity

Boodle Hatfield offers specialist advice across the whole spectrum of Court of Protection matters and complex capacity issues.

Your experts

Mental capacity concerns an individual's ability to make decisions about their life, whether it relates to their money, property, health, welfare or receiving medical treatment.

When someone loses mental capacity or is vulnerable, it can be a very challenging time for families.  This is especially true where there is substantial wealth or a family business involved and there is disagreement within the family about how these are managed and safeguarded.

What we do

We have specialist knowledge and expertise advising high and ultra-high net worth clients about complex capacity issues and we have a top tier ranked private wealth disputes team who represent clients in the Court of Protection.  We act for attorneys, deputies, family members and litigation friends.

Our experience and advice covers the full range of decisions an individual may need to make, including relating to their property and affairs, health and welfare, and medical treatment.

We advise clients on how to plan for their future in the event of incapacity, or if an individual has already lost capacity, the options for families to manage and make decisions about their relative’s affairs on their behalf, including making applications to the Court of Protection.

Sadly, when an individual becomes vulnerable or lacks capacity, it can create opportunities for others to financially exploit them and coerce them into making decisions they would not have otherwise made.  We can act for clients in claims to recover misappropriated assets and to remove attorneys or deputies where they have misused their authority.

What we advise on

We advise clients across the whole range of capacity and Court of Protection matters and associated claims in the Chancery Division of the High Court, including in the following areas:-

  • Enduring Powers of Attorney and Lasting Powers of Attorney
  • Obtaining an assessment of capacity
  • Disputes about whether an individual has capacity
  • Capacity to marry
  • Capacity to make a will
  • Tax planning applications for lifetime gifts on behalf of those who lack capacity
  • Statutory Wills
  • Applications to be appointed a deputy on behalf of an individual lacking capacity
  • Applications to replace a trustee who has lost capacity
  • Applications on behalf of protected parties and minors to approve a settlement, including under the Variation of Trusts Act
  • Applications for authority to litigate
  • Removing attorneys and deputies
  • Financial abuse claims
  • Undue influence and applications under the inherent jurisdiction
  • Medical treatment and welfare disputes, including life-sustaining treatment decisions
  • Dealing with overseas assets and obtaining recognition of powers overseas
  • Family and business governance in light of incapacity.
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Court of Protection & Capacity Frequently Asked Questions

Our team of experts have set out a series of user-friendly FAQs that detail some of the key terms that solicitors may use when working on legal cases involving Court of Protection & Capacity, alongside some scenarios where specialist legal advice may be required.

Find out more.

Expert Insights & News

Testamentary capacity in the spotlight A common ground for contesting a will is mental capacity and it is often deployed by disinherited family members to set aside a will. Partner, Nicola Bushby explains what the test for mental capacity is, how it works in practice, and why contemporaneous medical assessments are important. Read more The Lessons in Legacy Podcast: Do we underestimate the impact that divorce, incapacity or death can have on a legacy? Partners, Clare Stirzaker, Hayden Bailey, Katie O’Callaghan and Nicola Bushby discuss how individuals, families and their respective businesses will, more often than not, associate divorce, incapacity and death by their very nature as taboo topics and ones that are cloaked in discomfort or misunderstanding. In this episode, we reinforce the importance of addressing these life events and highlight why we mustn’t underestimate the impact they can have when it comes to legacy. Read more Tackling predatory marriages: a game of whack-a-mole An increase in predatory marriages has now attracted the scrutiny of the Law Commission, which is setting its sights on potential loopholes in the law being exploited by so-called predators. Partner, Nicola Bushby outlines how we must be vigilant to protect the elderly and vulnerable but doing away with spousal rights will not get to the root of predatory marriages. Read more Boodle Hatfield successfully succeeds on three grounds in a will validity claim During the course of the trial, which took place in November 2023, Partner, Nicola Bushby and Associate, Katherine Reed, acting for the Claimant, successfully persuaded the court that the will was invalid and should be set aside on three grounds: (i) lack of testamentary capacity; (ii) want of knowledge and approval and (iii) undue influence. Read more A tale of two tests Partner, Nicola Bushby and Associate, Katherine Reed describe the tension between the Banks v Goodfellow and MCA 2005 tests when dealing with testamentary capacity cases and highlight that the only rational course is for the law to adopt one single test. Read more View more