The NHS reports that there are more than 944,000 people in the UK who have dementia. They also say that 1 in 11 people over the age of 65 has dementia in the UK. They also point out that dementia is increasing because people are living longer. By 2030, they estimate that over 1 million people in the UK will suffer from dementia.

Why are the statistics about dementia important?

The capacity to make a Will or a Lasting Power of Attorney (LPA) is key. As the figures show, as more of the elderly population have dementia, it is essential to make your Will and Lasting Power of Attorney at a younger age. However, that is not always possible.

With dementia is becoming more and more of an issue as we age, one of the big questions is “Can someone with dementia still make a Will or a Lasting Power of Attorney (LPA)?”. To answer this question, we need to consider the facts and circumstances at the time the individual with dementia has the Will and LPA drawn up.

You must have mental capacity

Mental capacity is the key to making a Will or LPA. In legal terms, mental capacity means being able to weigh up options and make decisions for yourself. The Mental Capacity Act 2005 sets out the rules. It is worth noting that a diagnosis of dementia doesn’t mean you automatically lack capacity. Capacity can fluctuate, especially in the early stages of dementia so each case is individual.

Making a Will

To make a valid Will a person must have “testamentary capacity”. This means they must understand:

• What a Will is and what it does.
• The extent of their assets and who will benefit from their estate.
• The consequences of including or excluding certain beneficiaries.
• They are making these decisions freely and voluntarily.

If there are concerns about the person’s mental capacity at the time of making the Will it is prudent to get a medical opinion to confirm they understand what they are doing. In some cases, this can prevent disputes later on if the Will is challenged after the person has died.

Lasting Power of Attorney (LPA)

There are two types of LPAs: one for property and financial affairs and one for health and welfare decisions. An LPA allows someone to appoint trusted people to make decisions on their behalf if they lose capacity in the future.

To create an LPA the individual must have mental capacity at the time of signing. Like making a Will, dementia does not mean someone cannot understand the implications of appointing an attorney. But it is important to make sure the person understands:

• What the LPA is and what it does.
• The powers they are giving to their attorney(s).
• The risks and benefits of the LPA.

It’s also important the LPA is certified by an independent person who can confirm the person understands what they are signing and is not under any pressure.

Safeguarding Decisions

When capacity is in question taking extra precautions can safeguard the individual and their wishes. Solicitors often recommend getting a medical opinion when there is doubt about mental capacity. It is a good idea to have the medical expert certify the LPA. This can prevent legal challenges from family members or other interested parties later on.

What if Capacity is Lost?

If someone has lost capacity and hasn’t made a Will or LPA they may leave their family in a difficult situation. Without an LPA relatives will have to apply to the Court of Protection to become a deputy to manage the person’s affairs or to seek a Statutory Will. Most types of court processes are lengthy and expensive. Seeking appointment as a deputy or for a Standard Will can certainly fall into that category. All this can be avoided with early planning.

Plan to make your Will and LPA Early

Dementia makes decision making more complicated but doesn’t mean someone cannot make a valid Will or LPA. Early planning is key as it gives individuals the best chance to express their wishes and appoint trusted people to act on their behalf. If you or someone you know has capacity concerns, seek expert legal advice.

Award-winning private client lawyers

Here at Lewis Nedas Law we pride ourselves on our high standards of thorough, professional will writing, estate planning and administration, and Trust advice. We offer a personal sensitive service and can:

• deal with any size of estate;
• draw up lasting Powers of Attorney;
• act either as sole or joint executor;
• prepare the grant application and the Revenue account;
• advise on Inheritance Tax and possible reliefs;
• advise beneficiaries and executors.

Contact our Wills and Probate Solicitors London Today

If you would like further information on any of the issues covered in this blog, please do not hesitate to get in touch.  Please contact us on 020 7387 2032 or fill in our online enquiry form to get help from our experienced team.