Can someone with dementia make a valid will?

If you or a loved one is diagnosed with dementia, it’s possible to make a will while still having periods of lucidity, legal experts say.

It’s also recommended that you set up a durable power of attorney, a legal failsafe that allows someone you trust to take control of your affairs while you’re still medically capable of making decisions on your own.

But you need to be careful how you go about the process, because widespread misconceptions about dementia can lead to family disputes and claims against a will, warns Osbornes Law attorney Katie de Swarte.

Her company has seen a 40 percent increase in inquiries since late 2021 from people who believe a loved one’s will is invalid because it was created or altered after a diagnosis of dementia.

De Swarte says those living with the condition – 900,000 and rising in the UK – may want to write or amend their wills but think they can’t because it wouldn’t count.

Many people don’t make wills, with a new survey from the financial firm Killik and Co showing that more than half of adults have not recorded their final wishes. Even a third of the over-55s do not have a will, it turned out.

But it’s still possible to make one after a diagnosis of dementia, as long as you still have “will power,” the legal term used to describe the ability to make or amend a valid will , says De Black.

“Dementia is a progressive disease and patients in the early stages will still experience periods of clarity,” she explains.

But she warns: ”If the proper precautions are not taken, accusations can be made easier and it can be much more difficult to prove afterwards that a person was competent at the time their will was executed. Allegations of undue influence are also often made in these situations.

“I’ve seen many cases where an aging parent eventually moves in with a sibling and changes their will to reflect that child’s role as primary caregiver, only for other siblings to find out after death and dispute whether the older knew what they were doing or were being forced to do.’

Hannah Herbert, technical advisor at the STEP trade organization for inheritance professionals, says: ‘It is possible for someone with dementia to make a will.

“The level of knowledge required to demonstrate that they have the required capacity will vary from case to case, for example depending on the complexity of the estate.”

What to do with a will if you or a loved one has dementia?

1. Make a plan soon

If someone in the early stages of dementia or cognitive illness does not have a will or lasting power of attorney, it is best to address this as soon as possible.

“It’s hard to think about dealing with such a devastating diagnosis,” says Swarte.

“It’s important to keep in mind that if you want your wishes carried out, the more serious your condition becomes, the more difficult it will be, and it may reach a stage where it becomes impossible.”

2. Conduct a capacity study

Capacity is a legal term that means the ability to make your own decisions.

De Swarte says that if someone has been diagnosed with dementia or another cognitive impairment, an independent capacity assessment should be done at the time the will is signed, or earlier in the process if necessary.

“This is known as the ‘Golden Rule’ and is a protective measure that can be vital in preventing litigation later on,” she says.

Holly Chantler, director of Solicitors For The Elderly and partner at law firm Morr & Co, advises engaging a specialist capacity assessor, as GPs are generally not the right people to undertake this task.

She also suggests keeping a paper trail of the process followed.

“If a person makes significant changes to his or her wills, either from an existing will or differs significantly from the probate provisions, more explanation and more concern may be needed about the circumstances surrounding the making of the will,” she says.

STEP’s Hannah Herbert says: ‘Suffering from any loss of cognitive ability or decline in mental function will not necessarily prevent a testator from having mental competence, as their ability to make decisions can fluctuate.

“If there is a diagnosis of dementia, the drafter of a will should seek medical advice on the advance directive as close as possible to the date the instructions are given and the will is signed, to ensure that the will is valid is.’

3. Don’t assume that a person with dementia lacks abilities

People should be assumed to have abilities unless they are found not to have them, says Chantler.

“A person needs to be supported to make their own decisions and for that someone may need extra time and support, perhaps with the help of technology. Simple language may be necessary.’

She suggests that people read this Birmingham University report on capacity in everyday lifeand adds: ‘Capacity is time and matter specific, so a person may lack capacity one time but not another.

“You should consider whether there is a time of day or place (seeing someone in familiar surroundings) that increases the possibility that a person has capacity.”

Chantler explains that cognitive impairment must have a direct impact on the decision to be made in order to be considered.

“In the context of wills, for example, a person may be delusional, but they may not be relevant to the will and as such they may have the ability to make a will.

‘The Mental Capacity Act 2005 is very clear that a lack of capacity cannot be established by reference only to a person’s age or appearance, or a condition of his, or some aspect of his behaviour, which might lead others to make unwarranted assumptions. worry about his capacity.’

Chantler adds, “A person can be overly influenced even if they have mental capacity.”

4. Set up a durable power of attorney

You can protect your finances in case you get too sick to handle it by appointing someone you trust — usually a family member or friend — to take over through a durable power of attorney.

It is possible that an LPA is placed after a diagnosis of dementia, during clear periods, says De Swarte.

But she notes that the level of proficiency a person needs to make an LPA is determined by different laws, and so has different requirements than making a will.

“Again, if there are any cognitive difficulties, it is advisable that the person undergoes a capacity assessment at the time the LPA is taken. A medical expert can act as a certificate provider.’

STEP’s Hannah Herbert says: ‘While the legal test for the ability to make a will differs from that required for making an LPA, it is essential that a person making an LPA understands what they are doing and who enables him to make decisions on his behalf. .

“If the medical opinion is that the person is not competent and cannot make an LPA, you can apply to the Court of Protection for a substitute order that will allow you to make decisions on their behalf.

“This can be more expensive and it can take a while to arrange. Therefore, the best advice STEP can give anyone is to prepare a will and lasting power of attorney when they are fit and healthy to avoid problems in the future.”

Charity Dementia UK has advice on setting up an LPA here.

5. Engage a lawyer to avoid disputes

Using a legal expert ensures that the will or lasting power of attorney properly reflects the person’s needs and wishes and is workable, explains Holly Chantler of SFE.

It also reduces the risk of a claim or appeal being filed, she says.

“It can cause emotional distress to a person and their family if they are also dealing with the breakup of the family and dealing with the person’s decline at the same time.”