Can Someone With Dementia Make A Will or LPA?

31 Aug 2023 | Suzanna Baker
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It’s a sad reality in an ageing population that more people than ever suffer from dementia in the UK. Around 900,000 Britons are thought to be living with the disease, and though we’re at greater risk of developing dementia from the age of 65 – more than 42,000 under 65 have early-onset dementia.

Thankfully, it is reassuring to know that you or your loved one could still make a valid will and a Lasting Power of Attorney (LPA); the key requirement is that you have the mental capacity to do so.

At Osbornes Law, our specialist private client solicitors are helping increasing numbers of clients with dementia to protect their interests and their families before it’s too late. We also regularly advise family members concerned their loved one’s will may be invalid because of a dementia or Alzheimer’s diagnosis.

What happens if it’s too late to make a will?

Sadly, it can sometimes be too late for dementia sufferers to make a valid will. If they have a prior valid will in place, this will come into effect on death – though bear in mind it could still be subject to a claim from an aggrieved relative, such as a child or other dependent.

Where there is no will, the individual’s assets will automatically pass to their next of kin under the statutory rules of intestacy.

However, suppose the application of intestacy rules were to have a prejudicial impact on family members. In that case, it may be possible for a loved one to ask the Court of Protection to approve a ‘statutory will’ on the individual’s behalf. The purpose of a statutory will is to reflect the individual’s wishes as if they had the capacity to make their own will.

The private client lawyers at Osbornes Law are experienced in securing court approval for statutory wills and can explain the process to you.

Can I make a Lasting Power of Attorney if I have dementia?

An LPA is a document that you can use to legally appoint at least one attorney to make decisions on your behalf when you lose capacity, giving much-needed peace of mind to you and your loved ones. As for wills, you must have the mental capacity to make a valid LPA.

If you or your loved one has dementia, you can still make an LPA before it becomes too late. If there are concerns around your cognitive abilities, the solicitor will assess mental capacity concerning the Mental Capacity Act 2005 (“MCA 2005”). However, until recently, the courts lacked clarity on the level and depth of understanding necessary for capacity to create an LPA.

A case in June 2022 has helpfully illuminated the necessary test (The Public Guardian v RI, D, RS, RO (2022).  To have capacity to make an LPA, you must have all the “relevant information” and be able to retain it. We now know that relevant information includes:

  • The effect of the LPA
  • Who the attorneys are
  • The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers
  • When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective
  • The scope of the assets the attorneys can deal with under the LPA
  • The power of the donor to revoke the LPA when he has capacity to do so
  • The pros and cons of executing the particular LPA and of not doing so
  • Be able to weigh it up the information to decide to make the LPA and
  • Understand the consequences of making or not making an LPA

While there are two types of LPA – one for property and financial affairs and one for health and welfare – we strongly recommend that clients with dementia put both in place. Once completed and signed, the LPAs must be registered with the Office of the Public Guardian. Until an LPA is registered, the attorneys cannot make decisions for you, and whilst you have capacity, you can only do so with their permission.

We advise having LPAs prepared as soon as possible, given ongoing delays in registration (current waiting times are around 20 weeks).

What happens if it’s too late to make an LPA?

Dementia is a progressive illness and can eventually devastate a person’s ability to make their own decisions. Suppose your loved one’s dementia is so advanced that they cannot create an LPA. In that case, there is the option of applying to be appointed their ‘deputy’ (for personal welfare, property and financial affairs – or both, though it is much harder to become a deputy for a person’s health and welfare).

The Court of Protection can appoint you as deputy, giving you legal authority to make decisions for and on behalf of your loved on. Though your responsibilities would be similar to those had you been appointed under an LPA, the appointment is subject to greater restrictions, supervision and account-keeping responsibilities.

The application process is also lengthy – which could cause problems in the interim for your loved one given that they lack the capacity to make their own decisions.

Alternatively, professional deputies – such as Osbornes Law – can be appointed to look after your loved ones’ affairs.

How can I safeguard against possible future challenges?

The number of legal challenges to wills, probate and LPA disputes steadily continue – some are genuine, while others lack merit. However, important steps can be taken early to minimise the risk of costly and distressing disputes.

  • Wills disputes – A key concern when someone with dementia makes a will is to take appropriate steps to protect their estate from the risk of a challenge after death. It’s not unknown for an aggrieved relative to argue that the deceased lacked testamentary capacity to make a will; or that undue influence or duress was at play.

The wills and probate lawyers at Osbornes are experienced in recognising that a client lacks cognitive ability and may lack capacity to make a will.

Where there are concerns, they will observe the so-called ‘Golden Rule’ – a rule of good practice where a medical professional – usually the client’s family doctor – will be asked to conduct an independent capacity assessment and certify that the individual has mental capacity. A specialist capacity assessor could also be instructed. Ideally, they will also witness the will. This is an important step that can nip any potential dispute in the bud in the future.

  • LPA disputes – Similarly, an LPA could be challenged based on lack of capacity, so it’s vital that where there are concerns around cognitive issues, an expert medical opinion is obtained.

Helpfully, there is a level of protection built into the LPA itself: it must be signed by a Certificate Provider confirming that the individual creating the LPA understands what they are doing in making the LPA. They should not sign this if they have any doubts.

In the case of dementia patients, we often recommend having a capacity assessment undertaken when the LPA is made. The expert can also act as a certificate provider – protecting the individual from the risk of a future challenge.

Finally, other forms of evidence could prove vital in deterring potential disputes further down the line. This could include statements from family members and carers about the individual’s capacity when they made the LPA, benefits assessments, and records and statements from day centres, care homes and activity centres.

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