How dementia can affect the legality of a will

How dementia can affect the legality of a will

Having dementia doesn’t mean being unable to create a legally-binding will. However, it’s vital that certain criteria are met and that the person is or was mentally competent enough at the time of signing if it is to be valid.
Dementia is a term that describes a number of symptoms involving the brain. These symptoms can include memory loss, issues with communication and changes in mood. Dementia is a progressive illness, which means it worsens over time. As the symptoms become more intense, the individual will place greater reliance on family, friends and carers carrying out duties on their behalf.

A solicitor can help you find out whether the person in question is mentally-competent enough to make or change a will. They may need to seek out medical advice in order to confirm their level of competence. The person must understand the nature of the will and what its effects will be, who the assets or property are being given to and how much is being given away. If it is found that the person does not have a sufficient understanding of these factors and therefore doesn’t have testamentary capacity, they will not be able to make or change their will. Only the Court of Protection will be able to make or amend their will on their behalf. In some cases, the CoP will create a statutory will.

Lasting Power of Attorney

Although someone with Lasting Power of Attorney cannot make or change a will, they can manage other financial affairs when the person no longer has capacity. Anyone aged over 18 that isn’t bankrupt at the time the form is signed can act as an attorney. Those wishing to appoint an attorney are urged to think about the choice carefully, as they will be placing a great deal of trust in them. You cannot appoint an LPA once capacity is lost, which is why it’s so important that wills are created and LPAs are named before this point is reached.
It’s extremely advisable that the advice of a medical professional is sought out when wills are created. The professional can only witness and approve wills whilst the person still has capacity. This does not always mean the document will be valid but it will substantially increase the chances of it being honoured. A record of the approval must be kept.

How we can help

At Miller Reeves, we can come to your assistance if you require professional advice on making a will. We can help you ensure the document is drafted correctly, makes all the necessary provisions and is signed correctly so all wishes are recorded properly. We are also waiting to hear from you if you require advice on creating Health & Welfare and Property & Finance LPAs. Our passion for protecting your wealth and ensuring anything you leave behind goes to the right people knows no bounds. To find out more, call us on 0333 300 1882, e-mail or use the contact form on our site.