Looking After Those Who Look After P

The Court of Protection is the specialist court that looks after the affairs (both health and financial) of those who cannot manage them themselves, referred to as 'P'. One of the powers regularly exercised by the Court of Protection is authorising the execution of a will (called a 'statutory will') either to replace an existing will or to put a will in place for the first time.

The Court of Protection does not however have unlimited powers and it is not able to authorise the execution of a statutory will for a child, ie someone under the age of 18. This, in all likelihood unusual, problem was explored in the recent case of LCN v CJF and Others.

CJF's story

CJF was born on 2 October 2005. Complications at the time of CJF's birth meant that he suffered severe neurological disabilities. He needed 24 hour support for all aspects of his care.

He died on 4 December 2018 when he was just 13 years old. At the time the application was made, his life expectancy was very short.

CJF's biological father denied paternity and was not involved in his life. CJF's mother looked after him for the early part of his life, but she suffered permanent health issues due to the birth complications and could not continue caring for him. CJF was then looked after by foster carers who were unrelated to him, under a special guardianship order (which is an order appointing a guardian for children who cannot live with their birth parents).

CJF also had a deputy for property and financial affairs. A medical negligence claim meant that CJF received an award in damages from the hospital trust responsible for his birth of £823,943 and staggered periodic payments (which in 2018 were £88,250 per year). The award was held by CJF's deputy but legally it belonged to CJF, it was not held in any form of trust.

A house was purchased and adapted for CJF's needs using his funds. He lived there with his special guardians and their two daughters. They treated him as their own child.

In November 2018, CJF's consultant paediatric surgeon advised that CJF had entered a palliative phase in his care and that his life expectancy was only four to six weeks. This prompted consideration about what would happen on CJF's death, both to the property that he and his foster family lived and the balance of the award. CJF's total estate, including his home, was worth around £660,000.

The problem

On CJF's death, under the rules of intestacy, his assets would be divided equally between his mother and...