Dementia is on the rise, and as life expectancy increases, the number of Brits with the illness is expecting to keep going up. Research carried out in 2018 by the Centre for Future Studies (CFS) found that there are more than 12.8 million Britons over the age of 65.
However, the majority of older people are not making plans for what happens to their assets in the event that they lose mental capacity in later life. This can be seen by the fact that there are less than one million health and welfare lasting power of attorneys registered across England and Wales.
Currently, there are over 11 million people at high risk of developing dementia who do not have steps in place to make sure their family are able to assist with financial and healthcare decisions in the event of loss of mental capacity.
In this article Alison Beech, wills, trusts and probate experts and partner at Percy Hughes & Roberts Solicitors, explains the importance of lasting power of attorney for protecting your rights and the steps to take when someone with dementia wants to make or change a will.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal arrangement that allows you to appoint a trusted individual to make important decisions on your behalf, should you lose the ability to do so for yourself. There are two types of LPA that give the appointee the ability to make decisions about different aspects of a person’s life. The two types of LPA are:
● Property and Affairs
● Health and Welfare
A property and affairs LPA allows an individual to assist with any issues related to your finances or assets. This can include helping to pay bills, collecting benefits and other income and also managing the sale of your property.
With a health and welfare LPA, the appointed attorney is able to help make decisions regarding your health and wellbeing. For example, they can make decisions about your care plan and doctors are able to share your medical information with them. In most cases, doctors are typically unable to speak with relatives directly.
It is extremely important that people with dementia have a Lasting Power of Attorney in place. If an individual no longer possesses mental capacity, but there isn’t a LPA in place, decisions about their care and treatment will be made by medical professionals and can be upsetting to loved ones if they go against their wishes.
Can Someone with Dementia Make a Will?
Simply having a dementia diagnosis doesn’t prevent an individual from making decisions about their money and assets. However, medical professionals would have to be satisfied that they have mental capacity and are able to understand the decision they were making.
For somebody looking to make a will, you need to have ‘testamentary capacity’. This means that the person making or changing the will needs to show that they:
● Understand what making a will means and what its effects are
● Understand the extent of their property and how that can change
● Comprehending who might expect to be named in a will, and explaining why you would or wouldn’t decide to leave anything to them
As long as you can show that you understand these things, a will can be issued. However, in cases where the executor of a will has dementia, others can dispute the validity of any will that was created after the time of a diagnosis and the courts may decide to side with them.
To prevent this happening, it is advisable to speak to your doctor and get their medical opinion and also ask them to provide written medical evidence to support you before you begin to create or change a will.
If you have a question about Lasting Powers of Attorney or are in need of assistance setting up your own, Percy Hughes & Roberts solicitors have a team of dedicated LPA solicitors ready to help you resolve your issues and protect yourself and your family.
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