Frequently asked questions about dementia and Wills
Making or changing a will can be highly complex in some situations, especially if dementia or mental capacity is a factor. We have compiled information below in response to some of the most common questions and topics that we are asked about on this subject. If you can’t find the answer to your question below, please get in touch with our expert team, who will be happy to help. Call us on 0161 696 6238.
Can you make a Will if you have dementia?
In answer to this question, it needs to be decided if the person with dementia can make their own decisions when it comes to their Will in terms of mental capacity. Essentially, if the person still has the ability to understand the information they are being given, can remember details and reasonably weigh up different options against each other, they are likely to be considered as having the mental capacity to make their own decisions about things like what to include in their Will. Therefore a person with dementia can sign a Will if they are considered to have mental capacity to make decisions of this type.
If they are not able to do this due to the progression of their dementia, they are likely to be assessed as lacking mental capacity, which means that steps need to be taken so that someone else can legally make decisions on their behalf, in their best interests.
If you want more information about making a Will for someone with dementia who does not have mental capacity to make the necessary decisions themself, get in touch with us to discuss your options.
Can you change a Will if you have dementia?
If you are judged to have mental capacity to make your own decisions, then it is certainly possible for you to be signing a Will with dementia having been diagnosed. To help make sure that your decisions made at this time are honoured at a later date, it’s usually advised that you get a medical opinion which declares that you had mental capacity to make the changes at the time when you did. Due to the nature of dementia, your condition will unfortunately progress, so time can be of the essence with issues such as Will writing or amendments being made.
Changing a Will for someone with dementia who does not have the mental capacity to do it themselves can only be done by someone with the legal authority to do so. This could be s someone who has been appointed as their Court of Protection deputy.
Dementia and living Wills
A living Will is formally known as an advance decision. It is different from a standard Will, which determines what happens to someone’s estate after they pass away. An advance decision, specifically in relation to dementia, is designed to ensure that the individual can make plans for later life now, because they are unlikely to have mental capacity to do so in the future. These plans could include a set of wishes about the person’s care or future medical treatment. For example, some people choose to make an advance decision about refusing life-sustaining treatment if this situation comes to pass in the future. It’s recommended that expert legal advice is sought to help set up an advance decision, as the situation can be complex, especially if it might interact with lasting power of attorney at some point in the future. Get in touch with our team for more information on this, by calling 0161 696 6238.
Contesting a Will due to dementia
If a loved one has passed away, having suffered from dementia, there can be a situation where it comes to light that this person’s Will wasn’t set out as expected by their loved ones. If beneficiaries, or potential beneficiaries, believe that their loved one made or changed their Will at a point when they didn’t have the mental capacity to make reasonable decisions about this, they may wish to contest the Will.
Disputing the Will of someone who had dementia can be a complex process, so it’s recommended that you seek expert legal advice to find out about the next steps and how you can start proceedings to challenge the Will. Get in touch with our team today to find out more. Call 0161 696 6238.
What is a statutory Will?
If the person who suffers from dementia was not able to put a Will in place before their condition progressed to the point where they were deemed to lack mental capacity, it may be possible for a relative or friend to make an application to the Court of Protection for a statutory Will. This process can also be used if there is an existing Will in place, but changes are required.
For more information about this or to discuss the options, please get in touch with us by calling 0161 696 6238.
Further information
The advice provided to non-face to face clients will be through electronic or written communication only e.g. by telephone and email. Stephensons Solicitors LLP assumes no responsibility for, and shall not be liable for, (a) verification of mental capacity or testamentary capacity (b) verification of any undue influence or duress involved (c) the execution of any documents.
