Making plans for what happens to your estate when you die can seem daunting, but in our experience it’s always worth putting plans in place sooner rather than later simply because the future is unknown.
It is estimated that around 900,000 people in the UK are currently living with dementia and although the bigger risk of developing dementia occurs after 65, more than 40,000 individuals under 65 have early-onset dementia.
What happens if you develop dementia before you’ve finalised plans for your estate? Can you still make a Will or Lasting Power of Attorney (LPA)?
It is possible for you or your loved one to make a valid Will or LPA if you are living with dementia – as long as you have the mental capacity to do so.
Wills & Dementia
Thankfully, there are times we are able to help clients with dementia to make a Will, but it is far from straightforward and there is an increased risk of a claim being made against the person’s estate after they die.
The challenge is proving the individual has the mental capacity to make a Will despite their dementia diagnosis.
If you or your loved one can still understand enough to make decisions about the Will, then you can make a Will. Speak to a solicitor for legal guidance and it’s advisable to get a statement from your doctor to confirm you have the mental capacity at the time of writing your Will, as this will help to avoid disputes later on.
What If You Can’t Make A Will Because You Have Dementia?
If it’s too late for you or a loved one to make a Will, then what happens next depends on whether there is an earlier Will.
If there is a valid Will that was made earlier, then this will stand as your legally valid Will.
If no Will exists, the rules of intestacy will apply when you die – unless family members ask the Court of Protection to approve a statutory Will on your behalf as a statutory Will is designed to detail those wishes someone would make if they had the mental capacity to make their own Will.
LPAs & Dementia
Both types of Lasting Power of Attorney (LPA), the ones for property and finances, and the ones for health and wellbeing, enable someone to appoint an attorney or attorneys to make decisions on their behalf if they lose the mental capacity to do so themselves.
To make an LPA, you must have the mental capacity to make decisions.
You can still have the capacity to make one if you or a loved one has dementia because your solicitor can assess your mental abilities referencing the Mental Capacity Act 2005.
A 2022 case provided clarity on what mental capacity for LPAs means, stating the need for “relevant information” and the ability to retain it.
The information a person needs includes an understanding of:
- The effect of the LPA
- Who the attorneys are
- What powers the attorneys have
- When the attorneys can use their powers
- How the attorneys can use their powers
- Having the power to revoke the LPA when they have the capacity to do so
To make an LPA, a Certificate Provider must sign it to verify that the individual understands all they need to with regards to the LPA – which provides both reassurance at the time that the person has the mental capacity to make an LPA and helps to prevent future LPA disputes.
It’s worth noting that an LPA is only legally valid once it is registered with the Office of the Public Guardian, so don’t forget to register the document once it is completed and signed.
What If You Can’t Make An LPA Because You Have Dementia?
If you or your loved one’s dementia is advanced and this means there is an inability to make decisions, you can’t make an LPA.
In this situation, there are 2 options for you or a loved one:
- Apply to be a deputy
You can apply to the Court of Protection to be your loved one’s appointed deputy. As deputy, you have legal rights to make decisions for and on behalf of your loved one. It is similar to having an LPA in place but comes with more restrictions and management, and can take a while to set up. - Appoint a professional deputy
You can appoint a professional deputy, such as Bartletts Solicitors, to make decisions for and on behalf of your loved one.
Seek Medical Opinions To Prevent Future Challenges
If there are concerns about your or your loved one’s mental capacity to make a Will or an LPA, ask for a medical professional’s opinion. You can arrange for a doctor to run an independent assessment of mental capacity or to provide a written medical statement to confirm you have the mental ability to understand and make this decision.
How We Can Help You With Your Concerns Over Making A Will Or LPA With Dementia
Our Wills and probate team of solicitors can help you or your loved one if you have dementia and want to put a plan in place to protect your estate and family.
Our friendly approach and thorough understanding of this complex area of law has enabled us to help many clients with dementia to put plans in place to protect loved ones.
It’s always best to act sooner rather than later and with our help, we’ll make the process as straightforward, effective and stress-free as possible. We can help with drafting Wills, assessing if a Will is legally valid, securing court approval for a statutory Will, creating an LPA, or applying to be a loved one’s deputy.
