This week is Dementia Action Week, a time to raise awareness and encourage people to ‘act on Dementia’. This is the first in a series of articles which will focus on estate planning with Dementia in mind.
It goes without saying that it is important to ensure that you have an up-to-date valid Will in place. Without a Will your estate will be administered following the rules of intestacy, meaning you have no control as to who will or won’t benefit from your estate.
Can someone who is diagnosed with Dementia make a Will?
It is often assumed that someone with dementia will not be able to prepare a Will following their diagnosis. However, this will entirely depend on whether that individual has mental capacity to understand and make decisions in relation to their Will. We are all presumed to have capacity unless it is established that we do not.
For anyone to be able to make a Will they must have what is known as ‘testamentary capacity’. This essentially means that when an individual prepares their Will, they must be able to understand the following three points:
- the nature of making a Will and the effect it will have
- the extent of their possessions and how these may change over time
- who might expect to be named in the Will and why they are (or are not) being included
A capacity assessment helps determine whether a person can understand, retain, and weigh the information needed to make and communicate important decisions. The results of the assessment can then act as evidence to show that at the time of the individual writing their Will, they were able to make their own decisions.
I have been diagnosed with Dementia but I do not have a power of attorney – what can I do?
This again will depend upon your mental capacity as this is decision specific. It will therefore be determined by your ability to understand the document, the power you are granting under it and the types of decisions which can be made under the power of attorney. If you do still have mental capacity, it is strongly recommended to prepare a Lasting Power of Attorney as soon as possible to ensure that your chosen loved ones appointed, known as attorneys, can make decisions for you if you were to lose mental capacity in the future.
If this is left until such time as you do not have mental capacity, your loved ones would need to apply to the Court of Protection to be appointed as Deputies to manage your affairs. This can take between 12-18 months and during this time, no decisions can be made and your assets will be frozen, causing undue stress at an already difficult time for your family.
What next?
If you have received a dementia diagnosis, it is essential you review or prepare your Will and Lasting Powers of Attorney as soon as possible. It is always advisable that this is carried out by a solicitor specialising in wills and later life planning to ensure you obtain correct and up to date advice, tailored to your own individual circumstances.
To learn more about the wills, probate and estate planning services we have available you click here.