This week is Dementia Action Week, which highlights the importance of early diagnosis for those affected by dementia. What is dementia? ‘Dementia’ is a collective term for neurological conditions which cause a decline in memory amongst other cognitive functions. The symptoms will generally worsen over time. How does dementia impact a person’s ability to make a Will or lasting power of attorney (LPA)? If someone has a diagnosis of dementia, or has symptoms of cognitive decline, that does not necessarily mean that they cannot make a Will or lasting power of attorney (LPA). The current legal test for capacity in England and Wales is time and matter specific. This means that the person must meet the threshold for capacity at the time the decision needs to be made. Although a diagnosis is important, the current legislation does not require a diagnosis to be made. For both LPAs and Wills, a person must have the requisite capacity to make these documents binding. Acting swiftly where there are any concerns over capacity can be incredibly helpful and can enable the person to make these important decisions themselves. The wishes and feelings of the individual should always be considered and their autonomy should be encouraged as much as possible. However, if there is any doubt over capacity, with or without a diagnosis, a capacity assessment would usually be sought to determine whether or not the individual can make the document. What happens if someone doesn’t have capacity to make an LPA? If someone loses capacity to make decisions on their property and financial affairs, they will not be able to make an LPA. There may be cases where an LPA has already been made, but the appointed attorney(s) are unable to act. In this situation, it is likely that a Court of Protection deputy would need to be appointed to manage the individual’s property and financial affairs. An application would need to be made to appoint a deputy for the individual. What happens if someone doesn’t have capacity to make a Will? If a person lacks the mental capacity to make or change a Will, referred to as lacking testamentary capacity, they are unable to create a legally valid Will in the usual way. In such cases, it may be necessary to apply to the Court of Protection for a statutory Will , which is a Will approved and authorised by the court on behalf of the person who lacks capacity. You can read more about statutory Wills in our article Statutory Wills: losing mental capacity without a Will. How can Morr & Co’s Court of Protection help? A diagnosis of dementia can be incredibly overwhelming for the person affected, as well as their family. Our Court of Protection team at Morr & Co has extensive experience of assisting vulnerable and older clients, with members of the team undertaking specific training in relation to supporting older and vulnerable clients. If you would like to discuss the contents of this article, contact our Court of Protection team by emailing info@morrlaw.com or calling us on 0333 038 9100. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Alexandra Milson Solicitor Message Tags Insights On this page Related Stories Do you need a lasting power of attorney? What is a health and welfare LPA and why does it matter? Advance Decision or Health and Welfare LPA? View more Contact our team today to find out more Get in touch
