Dementia is a degenerative condition that can profoundly affect an individual’s cognitive functions, such as memory, comprehension, and judgement. When it comes to legal matters, such as making a will, the question of whether a person with dementia is capable of such a decision is both critical and complex. Understanding the concept of legal capacity and the necessary assessments for making a will is vital for those diagnosed with dementia and their families.
Understanding Mental Capacity
Mental capacity is, broadly speaking, a person’s ability to make decisions for themselves.
In the context of dementia, mental capacity involves a person’s ability to understand the relevant information about a decision, weigh that information to reach a sensible conclusion and then communicate their decision effectively.
Testamentary capacity is the legal term used to describe a person’s legal and mental capacity to make or amend a will. If the person making the will (the “testator”) lacks testamentary capacity at the time the will is executed, then the will is invalid.
The onset of dementia does not immediately strip a person of their mental capacity. Many individuals can make competent decisions in the early stages of the disease. The key lies in determining whether the person has the requisite mental ability to understand the extent and value of their property, the identity of the people who are the natural beneficiaries, the disposition they are making of their property and how these elements relate so as to form a rational plan of distribution.
Assessing Capacity
Assessing legal capacity in individuals with dementia involves evaluating their cognitive abilities, memory retention, and comprehension skills to ensure that their wishes are accurately represented and legally binding.
A person is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success, and they are not to be treated as unable to make a decision merely because they make an unwise decision. Furthermore, capacity is not a constant state and can fluctuate, particularly in the early stages of dementia.
Because of the above factors, assessing capacity is a delicate process, typically involving legal and medical evaluations. Legal professionals often work in conjunction with medical experts to assess an individual’s capacity at the time the will is made.
The assessment may involve:
- Detailed medical evaluations regarding the individual’s cognitive status and ability to engage in decision making.
- Interviews and assessments by a legal expert specialising in elder law to ensure that the individual understands the legal implications of making a will.
Assessing Testamentary Capacity
The test for capacity to execute a valid will is based in case law. A testator must:
- Understand the nature of making a will and its effects.
- Understand the extent of the property of which they are disposing.
- Be able to comprehend and appreciate the claims to which they ought to give effect.
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
The level of understanding required from a testator with dementia in each of these areas varies according to the complexity of the will, the testator’s assets and the claims on the testator. Therefore, it is important to engage a solicitor experienced in this field like Gillhams Solicitors to advise and assist to ensure the will being made is valid and enforceable.
Making a Will After a Dementia Diagnosis
For individuals diagnosed with dementia who wish to make or amend a will, the following steps are crucial;
- Early planning is advisable. Making legal decisions early in the diagnosis can help ensure that the individual’s wishes are respected and legally recognised.
- Engaging a solicitor experienced in elder law and estate planning like Gillhams Solicitors is essential. They can provide guidance tailored to the individual’s circumstances, ensuring that all legal documents are valid and reflect the person’s wishes accurately, and help obtain the necessary medical evidence to ensure the will is valid if necessary.
- Keeping clear documentation is beneficial to have a record of the individual’s wishes and their capacity at the time of making the will. This might include medical records, detailed notes from legal consultations, and witness statements. Engaging a solicitor will ensure accurate and appropriate records are kept in case the will is challenged in the future.
- As dementia is progressive, regular reviews of the will may be necessary to ensure it continues to reflect the person’s wishes as their condition evolves. This ongoing assessment helps to accommodate any changes in their cognitive abilities and preferences, ensuring that the will remains valid and up-to-date.
- Having witnesses present during the signing of the will who can attest to the individual’s capacity can be invaluable. These witnesses can be crucial if the will is later contested, providing additional evidence of the person’s understanding and intention at the time of signing. A solicitor witnessing the will and documenting the witnessing may contribute to the credibility of the testator’s capacity.
- In addition to a will, setting up trusts or powers of attorney can be effective ways to manage an individual’s assets and decision making, providing additional layers of protection and clarity. A solicitor can advise further on these matters whilst preparing a will.
Peace of Mind For Your Family; Even When Dementia Is A Factor
While dementia poses challenges to making a will, it does not automatically preclude an individual from doing so. With the right support and early planning, individuals with dementia can ensure their assets are distributed according to their wishes. It is crucial to seek appropriate legal and medical advice to navigate this complex area effectively, safeguarding the rights and wishes of those affected by dementia.
Gillhams Solicitors are the experts on hand to guide you through the process of making a will when you have dementia, all you need to do is contact us. This can be done by giving us a call on 020 8965 4266, email us at solicitors@gillhams.com or complete our online contact form and we will get back to you in no time.
