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An executor who lacks capacity cannot act, and power cannot be reserved to them. Before the grant, the application is made under rule 35 of the Non-Contentious Probate Rules 1987, supported by medical evidence on form PA14: a Court of Protection deputy, then an attorney under a registered EPA or LPA, then the residuary beneficiary, may take a grant for the incapable person's use and benefit. After the grant, the route is section 50 of the Administration of Justice Act 1985. This guide describes England and Wales.
The Mental Capacity Act 2005 establishes a two-stage test for mental capacity. First, is there an impairment of, or disturbance in the functioning of, the mind or brain? Second, does that impairment or disturbance cause the person to be unable to make a specific decision?
A person is unable to make a decision if they cannot understand the relevant information, retain it long enough to make a decision, use or weigh that information as part of the decision-making process, or communicate their decision.
Critically, the Act presumes capacity unless the contrary is established. Capacity is also decision-specific: an executor may lack capacity to deal with a complex investment portfolio but retain capacity to sign a straightforward form. Assessment should be made for each specific act of administration.
Common causes of incapacity in this context include dementia, acquired brain injury, severe mental illness, and the effects of medication. Where capacity is borderline or fluctuating, HMCTS will in any event want a certificate from a medical professional on form PA14 before treating an executor as unable to act.
Where the incapacitated executor has not yet applied for probate (or has applied but the grant has not yet issued), the following options are available:
The first thing to get right is that this is not power reserved. Form PA1P asks you to say why each non-applying executor is not applying, and it lists "C — Power reserved" and "F — They lack capacity to act as executor" as two different answers. Power reserved describes an executor who has chosen not to apply and could choose otherwise; an executor who lacks capacity has made no choice and cannot make one. Reason C also requires the applicants to declare that they have given the reserved executor written notice, which is not something an incapable person can meaningfully receive.
Reason F triggers a different process. HMCTS will want medical evidence — form PA14 (Medical certificate), completed by a medical professional, certifying that the person has an impairment of, or disturbance in the functioning of, the mind or brain and as a result cannot make a decision about the grant application and the administration, and lacks capacity to manage their property and affairs within the meaning of the Mental Capacity Act 2005. Where a registered LPA is being used, a short form of medical evidence is still required.
Rule 35 of the Non-Contentious Probate Rules 1987 then sets who may take a grant for the use and benefit of the incapable person, in this order of priority:
A deputy or other person specifically authorised by the Court of Protection to apply for a grant comes first. PA1P asks for an official copy of the court order to be sent with the application. A general property and affairs deputyship does not automatically carry this authority — the order has to cover applying for a grant of representation.
Where no one is authorised by the Court of Protection, the lawful attorney acting under a registered enduring power of attorney or property and financial affairs lasting power of attorney may take the grant. The original EPA or LPA (or a solicitor's copy certified on every page) goes in with the application. Note what this does and does not do: the attorney does not become the executor. They take a grant of administration limited to the use and benefit of the incapable person, which is a different grant with a different source of authority. PA1P also states that the attorney of one executor and an executor acting in their own right may not jointly apply for a grant.
Where there is no attorney entitled to act, or the attorney gives up the right, the person entitled to the residuary estate of the deceased may take the grant for the incapable person's use and benefit. Rule 35(4) also lets a district judge or registrar direct that the grant be made to some other person instead, and rule 35(5) requires notice of the intended application to be given to the Court of Protection unless the applicant is the person the court itself authorised.
Where the will names other executors who have capacity, they can of course apply on their own; the incapable executor is then accounted for on the form under reason F rather than reason C. See our guide on power reserved for what that route is actually for.
If an executor loses capacity after a Grant of Probate has been issued, the situation is more complex. The grant names them as executor and they theoretically have legal authority — but they cannot lawfully exercise it.
In this situation, the options include:
This is the most direct route. Section 50 gives the High Court a discretionary power to appoint a substitute personal representative in place of an existing one, or — where there are two or more — to end the appointment of one but not all of them. The application may be made by a personal representative or a beneficiary. Medical evidence will usually be required. Court fees and, if you instruct one, solicitor costs apply. No official body publishes a typical cost for a section 50 application; the current court fee is on the HMCTS fee list (form EX50) on GOV.UK.
Where there are co-executors who retain capacity, they may in practice be able to continue administering the estate without formal intervention — provided no acts require the incapacitated executor's specific agreement or signature. However, this depends on the circumstances and any institutional requirements (some banks require all named executors to authorise transactions).
The Court of Protection can appoint a deputy to manage the incapacitated executor's property and affairs. A deputy does not become the executor; what the deputy can do in the estate depends on the terms of the order, and authority to apply for a grant of representation has to be given expressly. Applications to the Court of Protection take time and carry their own fees.
If an executor who lacks capacity purports to act — for example, by signing a document, transferring assets, or instructing a solicitor — those acts may be void or voidable. This can create significant complications: transactions may need to be unwound, and third parties who have acted in reliance may have claims against the estate or the individuals involved.
The executor's personal liability also remains relevant. If the estate suffers loss because of an act done without authority, the executor or those advising them may be required to make good the loss.
Capacity is presumed under section 1(2) of the Mental Capacity Act 2005 until the contrary is shown, so the question is one of evidence rather than assumption. Where the point is live, the evidence HMCTS will look for is the PA14 certificate.
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