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This World Alzheimer's Day: Can someone with Dementia make a Will?

21/09/2020

Author: Alexandria Martin

Wills, Tax and Probate

Can a person with dementia make a will?

This World Alzheimer's Day: Can someone with Dementia make a Will?

World Alzheimer's Month is an international campaign which runs every September raising awareness and challenging the stigma surrounding dementia. World Alzheimer's Day is on 21 September each year.

As is being highlighted through this year’s World Alzheimer's Month, it is very important to talk about dementia. It impacts the daily lives of people affected by the condition, although a dementia diagnosis doesn't necessarily mean a person is unable to make important decisions at that point in time.

However, it is more than likely that the symptoms of dementia will get worse over time, so it can be important to make plans now for the future including provisions for finances, health and welfare.

Making a will with dementia

A person with dementia can still make or change a will, provided they can show that they understand its effect.

For anyone to make a will, you must have ‘testamentary capacity’. This means that there are specific things that you must be able to understand:

  • The nature, effect and meaning of making a Will
  • The extent of what you are leaving in your Will
  • Understanding and appreciating the obligations which someone in their position would usually have towards their family and other relevant individuals

Those with dementia must be able to understand the above and have the ability to make decisions about their will.

Anyone’s will can be disputed and there are things that a person who has dementia can do to avoid future complications or doubts. It is advisable that a person who has dementia should get a medical opinion or capacity assessment done so that if anyone questions the will in the future, there is evidence to say that they were able to make one at the time they did.

The Mental Capacity Act 2005

Following The Mental Capacity Act 2005 – A Testator does not have capacity if they are unable to:

  • Understand the information relevant to the decision
  • Retain the information
  • Communication this decision

The difficulty is that someone who struggles to retain the memory of their decisions may still have sufficient capacity to make and execute a will. On the other hand, a person who does not have capacity to make a will may still have capacity to carry out other acts. Incapacity can take time to develop, particularly for those who have dementia.

Statutory wills

If an individual does lack the testamentary capacity to make a will then it is possible under The Mental Capacity Act 2005 to apply to the Court of Protection for a statutory will to be made.

The Court will make a statutory will on behalf of the individual (testator) and must act in their best interests. They must consider the testator’s past and present wishes as well as the feelings, beliefs and values that would likely influence the individuals decision if they had capacity.

Can I get a Lasting Power of Attorney for someone with dementia?

A Lasting Power of Attorney allows arrangements to be made for someone to make decisions for the individual with dementia in the event they are unable to make them for themselves. The individual with dementia will be able to arrange their own LPA provided they still have mental capacity within the same terms as described above. The client will be able to specify individuals whom they would like to make decisions and handle their affairs - both regarding property and finance, and health and welfare.

Read more: Lasting Power of Attorney

If the dementia sufferer has already lost mental capacity, it will not be possible to make a Lasting Power of Attorney at that stage. It is possible to apply to the Court of Protection for a Deputyship Order, although this can be a long-winded process with various Court fees attached. Read more on the Government website here: https://www.gov.uk/become-depu...

Hatch Brenner Solicitors has experience of advising clients with dementia and their families regarding making a will and further provisions for their care including Lasting Power of Attorney. Private Client Solicitor Alexandria Martin can be contacted at alexandriamartin@hatchbrenner.co.uk or via 01603 660 811.

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