Being in receipt of a dementia diagnosis does not suddenly render you unable to deal with important legal issues. Dementia is a progressive illness and no two people living with dementia will follow the same journey; how long you are able to do things for will ultimately depend on your individual circumstances. It is however important to give consideration to legal matters at the earliest opportunity, given that there are set tests in law which dictate whether a person is capable of creating certain legal documents.
Create, review or update your Will
Whilst your Will does not come into effect until death, it is important to review the document to check that it still accurately reflects your wishes.
The ability to update your Will has not been taken away from you by virtue of you receiving your diagnosis. In order to ensure the validity of a Will, you must have sufficient testamentary capacity. Testamentary capacity is a legal term which means there are specific things that you must be able to understand. These requirements have been remained the same for many years (it was originally set out in the case of Banks v Goodfellow ).
You must be able to understand:
- What making a will means and the effect that it will have;
- What you own and how this might change;
- Who might expect to be named in your will, and why you are choosing to either leave or not leave things to them.
We may recommend that you discuss your intended changes with a medical professional, and we may also ask that they act as a witness to the Will itself. This will assist in protecting your Will against any claims on the ground that you did not have sufficient mental capacity at the time of signing.
Create, review or update your Lasting Power of Attorney
Whilst your Will deals with what happens to your assets upon your death, Lasting Powers of Attorney deal with certain elements of decision making should you have lost capacity or simply require some assistance in doing so. If you do not already have one, you should consider getting a Lasting Power of Attorney. These documents superseded the “old style” Enduring Powers of Attorney in 2007, and enable you to appoint people that you know and trust to make certain types of decisions for you, either should you require some practical assistance in doing so, or if you are no longer able to do for yourself. It is important that you consider your Attorneys have the right skills and qualities to be able to make such decisions for you. Your Attorneys must always act in your best interests.
There is a common misconception that spouses can make decisions on behalf of their husband/wife/civil partner who has lost capacity. As can be seen from the recent well-publicised difficulties which Kate Garraway faced in terms of dealing with financial matters whilst her husband was in a coma, this is not the case from a legal point of view and a practical considerations should be given to creating Lasting Powers of Attorney.
It is worth noting that Enduring Powers of Attorney have not been automatically invalidated as Lasting Powers of Attorney came into force. There are however some key differences between the two documents, and it would be beneficial to seek legal advice as to whether your Enduring Power of Attorney continues to work in your circumstances:
- With a Lasting Power of Attorney, these have to be registered before they are capable of being used. With an Enduring Power of Attorney however, these can be used by your Attorney all the while you have capacity to make decisions, but will need to be registered once your Attorneys believe that you have either lost or are losing capacity. The registration process of either document can take a few months, so it is worthwhile, if you are minded to make Lasting Powers of Attorney, getting these in place sooner rather than later.
- Enduring Powers of Attorney can be used by your Attorneys to make any property or finance related decisions, such as paying bills, moving money between accounts and, if required to do so, selling property, but cannot be used to make health and welfare related decisions. There are two different types of Lasting Powers of Attorney; one to deal with those property and financial decisions as referred to above, and the other to assist with health and welfare decisions, such as what you may eat and wear and where you may live or receive care. A Lasting Power of Attorney for Health and Welfare decisions can only be used at such a time as you have lost mental capacity; all the while you can make your own decisions of this nature, you are expected to do so.
- Enduring Powers of Attorney allowed you to appoint named individuals to make decisions for you, but if something had happened to your named Attorneys, i.e. if they lost capacity themselves, predeceased you, or became bankrupt, they would not be able to act, which could make the document no longer useful to you. With Lasting Powers of Attorney, you now have the option of appointing replacement Attorneys, who could step in and act in the event of one or more of your Attorneys no longer being able to do so, to ensure that decisions are capable of being made by those you know and trust to act in your best interests.
Staff at Whitehead Monckton have taken time to increase their understanding of dementia by becoming Dementia Friends, and have gained a better understanding of how dementia may affect a person so as to better support those living with dementia with their legal affairs.
If you would like assistance with preparing Wills or Lasting Powers of Attorney, please do not hesitate to contact the Tax and Estate Planning team on 01622 698000.