Dementia Action Week runs between 17th to 23rd May 2021. This national event encourages people to take action to improve the lives of those affected by dementia. Dementia is a general term for the impaired ability to remember, think or make decisions. This can affect a person’s everyday activities and older adults are mostly affected.
Who can make a Will or LPA?
It is often assumed people with dementia cannot make a Will (if they haven’t already) nor change their existing will. This is because, to make or change a Will, a person must have the necessary testamentary capacity. To make LPAs it is necessary to understand the meaning and effect of the documents.
Capacity is function-specific; therefore, a person may have capacity to understand and make some decisions but not others. Dementia can affect a person’s capacity and ability to understand legal documents.
What is the process?
When we see a client to take instructions for a Will, or to put in place Lasting Powers of Attorney (‘LPAs’), we undertake a capacity assessment within the very first meeting. If there is any doubt as to capacity, or if there is perhaps an existing medical diagnosis (such as dementia), it does not necessarily mean a person does not have any capacity whatsoever to make a Will or LPAs.
Where there is doubt as to capacity, we would recommend a full capacity assessment of the person takes place by a qualified medical professional (who could be their GP). A report would then be produced by them.
What is the capacity report?
The report should specifically assess and state whether the person with dementia has the requisite testamentary capacity to give instructions to make a Will and/or LPAs. If capacity is confirmed, the person can then proceed with making a Will/LPAs, however, this should be done quickly as capacity can decline over time.
Dementia, specifically, is a progressive disease that gets worse over time so it is important to act quickly if the person diagnosed wishes to make a Will or change their existing Will.
A diagnosis isn’t always a prohibitor
There is often stigma attached to whether a person who has a diagnosis of dementia can instruct a solicitor. By raising awareness of this disease, and its effects, we can help those affected and their families understand that having dementia is not a complete bar to a person making a Will or putting an LPA in place.
Hatch Brenner have experience of advising clients with dementia and their families therefore if you wish to get in touch our Private Client Team are available to answer any questions you may have. Private Client Paralegal Rachel Frammingham can be contacted at firstname.lastname@example.org or via 01603 660811.