Written by Claire Cox, Head of Inheritance Disputes, Hedges Law
Almost 1 million people in the UK are currently living with dementia. Most of us will know someone that has been affected by it, but a diagnosis can still come as a huge shock and be very worrying for an individual and their families. However, the law is there to protect you before and after a diagnosis, so it’s important to get advice about your future whatever the circumstances.
You’re never too young to start planning
Before you have ever even thought about dementia is the best time to start planning for your future. You are never too young to get started. Around half of UK adults do not have a Will, and far less have an LPA (Lasting Power of Attorney) in place.
These important documents offer the best protection for you and your family. Anybody can create an LPA and everyone should have one. By preparing an LPA you will be the one who decides what happens and who can make decisions for you if you are no longer able to in the future. This person may need to make decisions about your property, finances and most importantly about your health and welfare, so you really want to decide who this person is yourself.
Dementia is often associated with older people, but more than 70,000 people in the UK living with dementia are under the age of 65. An LPA would offer protection in this scenario – and it’s worth noting that it would also protect you if you were to have an accident whilst driving, or on holiday – which could happen at any age.
Sitting down and deciding what you want to happen in the future will provide you with certainty and security. Be proactive, be brave and take hold of your future by getting these documents sorted.
If you’ve been diagnosed with dementia
Recent research from the Alzheimer’s Society shows that 9 in 10 people living with dementia said getting a diagnosis had benefited them, so if you are concerned about someone, getting an early diagnosis is likely to help them.
A common misconception is that all doors close once a person is diagnosed and they are then unable to make decisions, make or update their Will, or put an LPA in place. But in reality, the law says that nobody can be considered to have lost their capacity for every decision, so it’s really important to engage with professionals, because the likelihood is, there will be things that can still be done to protect you or a loved one. Dementia has a huge range, and someone may still have the capacity to make a Will or an LPA and be capable of running their own affairs after a diagnosis.
Assessing capacity is something that will need to be completed by a professional. Lawyers will often work with a capacity assessor, such as a GP or geriatric specialist to carry out those assessments and determine what decisions that person is still able to make for themselves. Your lawyer can then help to put all the protections in place based on this assessment. Don’t let a diagnosis be a barrier to making decisions about the future. The sooner you talk to an expert then the more they can help to get things in place.
It is often thought that following a dementia diagnosis, it is impossible to make or update a Will. This is in fact, incorrect, and a person can still be judged by a capacity assessor as having the capacity to make these decisions. When reviewing an existing Will, make sure it is still doing what you want it to do – are you still happy with the executors you have appointed and the beneficiaries you have named? Don’t forget, circumstances change and it is always a good idea to think about those you have named in your Will and if you need to alter anything to make sure your wishes are still able to be followed.
If the worst does happen and it is assessed by a professional that someone lacks capacity to make an LPA or a Will, it is more difficult but there are still things that can be done. At this point, someone can apply to be the person’s Deputy, often a family member if they are willing. A Deputy is appointed by the Court of Protection to look after a person’s affairs and this is usually limited to property and finances, not health and welfare.
A Deputy has ongoing obligations to the Court and the costs of an application far exceed the costs of an LPA. It can take up to a year for a Deputy to be appointed. During this time the person’s assets will be frozen. Preparing an LPA in advance would avoid this, so this is always the best option if possible. In certain circumstances, if someone lacks capacity to make a Will, it is possible for one to be made on their behalf by the court. This is called a Statutory Will, but they are not common so you will need the help of a professional.
Why it’s important to prove capacity when writing a Will
As I’ve mentioned, you can still prepare a Will if you have been diagnosed with dementia but it’s important to ensure that capacity has been properly documented at the time of writing the Will, to protect the estate as far as possible from challenges after your death.
In practice, if there are any concerns in relation to capacity then a solicitor will usually recommend that a medical report is obtained from a capacity assessor. If this is not done, then the Will is more susceptible to challenge, and it would be a matter of fact for the Court to decide as to whether the deceased had capacity at the time.
The importance of regularly reviewing your Will (and LPAs) as relationships evolve and alongside major life events, cannot be understated. That way, if a loss of capacity occurs suddenly, due to dementia or otherwise, then your Will will be up to date at the time, and more likely to reflect your current wishes, helping to reduce the risk of family fallouts after your death.
If a challenge to a Will’s validity does arise, it is not unusual to see costs running into five figure sums. Similarly, if there is an intestacy which does not provide for a partner, because a Will was never prepared, the costs can be significant. Taking legal advice as early as possible is paramount and can save your loved ones a huge amount of time and money in the long run, simply by planning ahead wherever possible.
Claire Cox is Head of Inheritance Disputes at Oxfordshire-based law firm, Hedges Law.
An experienced disputes lawyer, Claire studied law at Cardiff University and qualified as a solicitor in 2009. Claire specialises in inheritance disputes and contentious probate, include claims against estates, such as disputes between Executors or Trustees, estate administration issues, breach of trust, and claims around will validity, and has completed the ACTAPS qualification for lawyers specialising in contentious trust and probate work.
