Can my father with dementia cut my sister out of his will?

I have just been granted a lasting power of attorney for property and financial matters for my father.

He is in a nursing home because he has vascular dementia. I may have to sell his house to pay for his care when his savings run out.

He has made a will stating that when he dies the house will be sold and the proceeds split between my sister and me.

However, she is not involved in his life at all after a huge family disagreement and she abused him financially.

What happens to her share of the sale of the house when he dies?

He has talked about amending his will so that all money from the house sale will go to me.

Is it too late for him to change his will since he still has enough mental capacity to know what he is signing? Or do I make sure that my sister’s share is in a savings account when I sell the house?

Tanya Jefferies, from This is Money, replies: I am sorry to hear that your father is so ill and for your sister’s shocking behavior towards him while he is in this vulnerable period of his life.

While you and your family are dealing with the painful consequences of that, it sounds like you’re in a stronger position to help your father now that you have power of attorney and can make decisions about selling his home.

Hopefully, you can still do this with his help if there are times when he’s good enough to talk about it.

We’ve asked a lawyer to explain your options and how someone with dementia can change a will in a way that ensures their current wishes are followed and it’s not contested later.

Jaz Virk, Lead Private Client at Brindley, Twist, Tafft & James, replies: A ‘durable power of attorney’ means that you have been given the responsibility to manage financial and property matters on your father’s behalf.

If his ability to do this himself fluctuates, he should still be involved in all decisions to the extent he is able.

Given the rising costs of care homes, it is very common to sell a parent’s former property to meet these costs.

However, before selling a property, it is advisable to seek financial advice to explore the options available to you as its lawyer.

If the house is sold during your father’s lifetime to pay for medical expenses, you and your sister – provided she is still named in the will as it appears when he dies – are entitled to equal shares of whatever is left. is left, provided you are the beneficiaries of the remaining estate.

The residue of an estate means after taxes and all other obligations have been paid, and estates such as money and other gifts have been distributed.

If there is no more money, neither you nor your sister will benefit.

Can your father change his will?

If your father has made a will stating that upon his death he wishes the house to be sold and the proceeds to be divided between you and your sister, then the money from the sale of the property will be divided between you and your sister by the executors (which may include you and/or your sister).

It is worth checking that you and your sister are also beneficiaries of the remaining estate, in case the property is sold during your father’s lifetime.

Unfortunately, regardless of your sister’s behavior, your father’s will remains in effect.

That said, it’s important that records are kept of the disagreement, especially any evidence of the financial abuse.

Your father has every right to amend his will, although you should be sure that the document is properly drafted and executed, and that the original is kept safe for reference upon your father’s death.

While someone with dementia can change their will, your father must demonstrate that he has the required “testamental competence,” that is, the understanding needed to make a valid will.

How is your father supposed to change his will if he wants to?

A legal professional should be instructed to draft the new will to ensure that your father has the capacity to do so and that there has been no undue influence on his decisions.

An attorney will help with this process, and in situations where someone may be disinherited, you’ll probably want to involve an independent party.

Usually the process will involve an initial visit by the attorney to your father to follow instructions, and given your father’s diagnosis of vascular dementia, an attorney will likely want to bring in a specialist to assess and verify his abilities.

This is also likely to be helpful if your sister tries to challenge the will, on the grounds of disability, after your father dies.

It is not necessarily enough that your father knows what he is drawing.

Under the Mental Capacity Act 2005, your father must demonstrate that he understands the effect of making a will, the size and value of his estate and, most importantly, he must be able to distinguish between those who are entitled to the estate and to arrive at some kind of moral judgment with regard to them.

If your father cannot prove he is legally competent, he cannot change his will himself.

What if your father is unable to change his will?

There may be room for you, as your father’s power of attorney, to apply for a “statutory will” from the Court.

The Court of Protection is a specialized court that helps people who are unable to manage their own affairs.

The court will require medical evidence of your father’s disability, details of his family, his assets and the proposed new will.

Your sister, as one who might be disinherited by the statutory will, would be joined as a party to the proceedings.

If she disagrees with the proposed legal will, the process is much less straightforward and may require a hearing in addition to the paper application.

In these circumstances, an ‘official attorney’ would be appointed to represent your father’s best interests, and the court will need to be satisfied that the provisions of the proposed statutory will are in your father’s best interest in order to grant it and will replace. existing will.