Mental capacity

What can you do if an elderly or vulnerable person does not have the mental capacity to take decisions for themselves? Or indeed if you need to protect your arrangements against any suggestion of mental incapacity?

If you have concerns that someone in your life is no longer able to take legal decisions for themselves, Withers can offer guidance. We have a huge amount of legal and life experience in mental capacity matters, and have helped to develop the law in this area. We assist individuals, families, trustees, conservators and other professionals in all kinds of cases.

Recently we advised the attorney of an elderly lady who had given away valuable works of art at a time when her capacity was in doubt, and settled an employment case for a client who was suffering severe bouts of depression. We established in court that mental illness had not affected the capacity of one of Singapore’s richest women to make a will, and successfully challenged a woman who had moved in with an elderly and vulnerable couple in California. At present we are acting for the children of a very high-profile individual in the UK who disinherited them while seriously ill.

A good first step is to establish the facts of the matter. If necessary we will call on an extensive network of professional contacts, including medical mental capacity experts, to do this. With this information we will find a solution – whether by agreement, by obtaining a court order or in the last resort through litigation.

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Top ranked in Band 1 for Court of Protection

Top ranked in Tier 1 for Court of Protection

Finalist for STEP 2017/2018 Awards for Vulnerable Client Advisory of the Year

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Track record

An elderly client in California

Withers helped an elderly client defeat aggressive efforts by her daughter to force her to endure a medical examination or submit to a guardian ad litem. Withers is often asked to zealously represent parties in California elder abuse actions in a variety of scenarios, including both those situations where the older person is still alive or is deceased.

Incapacitated and no estate plan

We assisted our elder client who did not have an established estate plan and sadly became incapacitated. We were successful in obtaining the court approval to create an estate plan for him that ensured an efficient transition of his assets in accordance with his known wishes.

Cross border issues relating to Dementia

When our client was diagnosed with an aggressive form of early onset dementia, he was forced to retire earlier than he or his family had expected and planned for. Leaving his job overseas and relocating to the UK brought about greater difficulties. We assisted his children as their father's attorney in resolving a complex retirement and permanent health insurance package with his employers. We also made an application to the Court of Protection for its approval of the package.

Application to the Court of Protection on international assets

Advising our client as attorney for her incapable mother under a registered Enduring Power of Attorney in the UK, she was seeking to sell a number of her mother's properties overseas on her behalf. She was not able to obtain the local jurisdiction order to enable her to do so because her mother was too ill to travel for the necessary medical assessment. We therefore created an innovative application to the UK Court of Protection based on the unusual scenario, using our international expertise.

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