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Profile: Court of Protection
Experience and Expertise
Justin Holmes is recommended by Chambers UK as “well known on the property and affairs side of the Court of Protection” and has extensive experience of Court of Protection litigation, including contested deputyships, objections to attorneys under Lasting and Enduring Powers of Attorney, orders for lifetime gifts and statutory wills, applications for declarations of capacity and applications for authority to conduct litigation. He has experience both in raising objections to attorneys and deputies and in rebutting them.
He is also able to advise in respect of overlapping or related personal welfare matters, such as capacity to marry, a direction as to which residential home is suitable for the incapacitated person, or whether a particular individual should be allowed to visit the incapacitated person.
Cases and Work of Note
Illustrative recent examples include:
- an application by attorney for authority to make future gifts out of income. Justin was instructed by the Official Solicitor in this case where P was a wealthy aristocrat and was proposing to make gifts only to the eldest child. P’s wishes were apparently established by a history of substantial gifts to this child, but were opposed by another child;
- application for statutory will. Justin acted for Portuguese daughters of P who had had little contact with her since their early childhood, even after they re-established contact with her in later life;
- application for statutory will. Justin acted for attorney of P, who had found in P’s papers a draft of a will which she had proposed to make but had not made. Opposed by other relatives, none of whom had been close to P, largely on the grounds that P was snobbish about her father’s family and “would have wanted” to keep her assets within it;
- application by Justin’s client to be appointed as attorney and for permission to charge P’s house with sums claimed by attorney as owed to attorney’s late husband’s estate. Advice to client as to whether and if so to what extent application might be proceeded with, and how otherwise to obtain repayment of sums advanced by her late husband;
- advice to client as to whether he had capacity to enter into a marriage and a pre-nuptial agreement and to make a new will;
- advice to attorney as to whether or not to apply for statutory will. Advised that in view of the evidence that P had positively decided not to make any will when she had capacity, it would be difficult to persuade the court to make one for her;
- advice to attorney as to her position in the light of claims by P’s ex-wife that she had a conflict of interest in continuing to act as attorney when her ancillary relief claim against her own husband (P’s son-in-law) might be affected by the outcome of the ex-wife’s claim against P;
- advice to relative of P in respect of statutory will application made by attorney;
dispute between relatives of P as to appointment of deputy and other issues in respect of both P’s property and affairs and personal welfare. Appeared on behalf of Official Solicitor to seek appointment of independent deputy;
- advice to relatives of P in respect of application for statutory will made by P’s attorney;
- advice to client in respect of proposed application to the Court of Protection for a declaration of her capacity to receive and manage a residuary legacy from the estate of her uncle, including difficulty of
- applying for interim relief without accepting that there was an arguable case that she did not in fact have capacity;
- advising daughter of P on her application to be appointed as deputy for her mother, and on her obligation to account to the Court for money received by her as her mother’s attorney;
- represented deputy on contested statutory will application in circumstances where one of three daughters had received substantial funds from P already, and her son had also received substantial funds;
- contested statutory will application where Justin represented P on instructions from the Official Solicitor and there was a dispute between P’s wife on the one hand and his children by a previous marriage on the other;
- application for approval of scheme under which property owned by P and her deputy, her husband, would be sold and reinvested into a second property;
- representing P on application for sizeable lifetime gifts into settlements and for statutory will where main controversy was whether beneficaries under a previous will ought to be joined to the proceedings given that there was a later will, but that P had questionable capacity at the time it was executed.