What happens if a sole executor is mentally incapable?
If a sole executor is mentally incapable of administering the deceased’s estate, the beneficiaries need to find a solution, fast.
This is actually quite a common situation and is likely to become more common as the number of people with dementia increases.
Risks if a sole executor is mentally incapable
Many people appoint just one executor in their Will. If the sole executor is mentally incapable before the Testator dies the Testator can easily appoint a new executor, provided the Testator hasn’t also lost capacity. Unfortunately, it often doesn’t become apparent that an executor lacks the mental capacity to manage the estate until after the Testator has died.
If a sole executor is mentally incapable it could result in serious difficulties and delay in administering the estate. There could even be a risk to the estate assets if the executor is incapable of dealing with them properly. The executor might make mistakes caused by their brain impairment. Their attitude to risk could be affected by their condition. Often one of the early signs of dementia is that the person becomes more reckless.
How could a Lasting Power of Attorney help?
Where it’s obvious from the start that the sole executor is mentally incapable the beneficiaries should enquire whether the executor made a Lasting Power of Attorney.
If the executor made a Lasting Power of Attorney (or an Enduring Power of Attorney) their attorneys can apply for a grant from the Probate Registry on behalf of the incapacitated executor. In cases where the executor hasn’t made a power of attorney then an application can be made to the Court of Protection for the appointment of a Deputy. The order appointing a Deputy must include authority for the Deputy to manage the administration of the estate on behalf of the executor.
When the grant is eventually issued there are likely to be limitations placed on it by the Probate Registrar, for example, limiting its use until the executor regains capacity (if there’s a possibility that could happen).
4 steps to avoid problems if a sole executor is mentally incapable
Appointing only a sole executor can be unwise for a number of reasons. It’s risky just to rely on being able to appoint a replacement if something should happen to your only executor. If you really can’t avoid appointing a sole executor you could take some steps to reduce the risks.
Consider these steps:
1. choose executors carefully – preferably an executor who is younger than you;
2. ask your executor to consider making a Lasting Power of Attorney;
3. think about the responsibilities your executor is going to have and whether you could arrange your affairs to make it simpler for them;
4. review your Will regularly – at least every 5 years.
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The author: Rosamund Evans is a qualified solicitor and registered Trust and Estate Practitioner who specialises in issues affecting older people and people with disabilities.