Statistics published by the Alzheimer’s Society reveal that there are presently around 850,000 people with dementia in the UK, a figure which is projected to rise to 1 million by 2025. With legal disputes over Wills made by dementia sufferers on the increase, Helen Bradin, Partner at solicitors Bradin Trubshaw & Kirwan LLP, explains the importance of planning for the future.
Dementia is a progressive illness which often develops over a long period and may not be obvious at first. As people live longer dementia is becoming more prevalent so it is really important to plan ahead, for example to make a Will and Lasting Power of Attorney (LPA), to prevent disputes due to ‘mental capacity issues’ – that a person who made or altered their Will lacked the mental capacity to create a valid legal document.
A Valid Will
To make a Will a person must have ‘testamentary capacity’ which means that they understand what a Will is for and its effects; they comprehend the extent of assets they are giving away and to whom; they appreciate that claims may be made by people who expect to be left something in the Will and that their judgment is not affected by a mental illness which could impact on the disposal of their estate. A person who has been diagnosed with dementia may wish to make or change a Will and it does not necessarily mean that they cannot do so but they should seek legal advice from a solicitor who will conduct the appropriate tests to decide whether they have ‘testamentary capacity’ – often done after also taking medical advice. If it is concluded that the person who wishes to make or amend a Will does not have ‘testamentary capacity’ because of their dementia, then they cannot do so and no-one else can act on their behalf except the Court of Protection who in certain circumstances may make a Statutory Will. If someone wants to challenge a Will on the grounds of lack of capacity, then it is down to them to prove it.
Dementia and Mirror Wills – The Implications
Mirror Wills are where a married couple or civil partners make almost identical Wills leaving, for instance, everything to each other or, if they both die together, to their children (if there are any), otherwise to named beneficiaries.
A point of consideration with mirror Wills is that as many couples own their home ‘jointly’ i.e. each owns 100% of the property, any local authority assessment for the payment of care home fees will take the value of the whole property into account. What this means is that if one partner goes into care and the other dies first, then 100% of value of the surviving partner’s home will be assessed for the payment of care. One option therefore is a Deed of Severance, severing the tenancy of the property, which means that both partners own 50% each as ‘tenants in common’ – so a local authority seeking to recoup the cost of care is limited to that person’s share of the property.
A second possibility is to include a ‘life interest trust’ in a Will, whereby assets are directed into a family trust, so on the first death the deceased’s share of the property goes into trust and is then not means testable if the surviving partner goes into care.
Lasting Power of Attorney
A person with dementia is very vulnerable to being taken advantage of in terms of their Will and finances which is why making a Lasting Power of Attorney (LPA) allows them to give authority to someone they trust to make certain decisions on their behalf. There are two types of LPA – Health and Welfare (decisions such as medical treatment, where someone should live) and Property and Affairs (managing a person’s money, property and affairs). An LPA must be made whilst a person is still able to make decisions for themselves and must be registered before it can be used.
For advice on family and other legal matters contact Bradin Trubshaw & Kirwan LLP on 01543 888275 for a consultation or email firstname.lastname@example.org