Help guide Myth-busters #7 – Someone with a Dementia diagnosis cannot make a Will or Power of Attorney In many cases, a diagnosis of Dementia does not prevent someone from making or updating their Will, or putting Lasting Powers of Attorney (LPAs) in place. In fact, in our experience, receiving a diagnosis like this, tends to be the nudge that people need to put their affairs in order. Whether or not you can make a Will, depends on your level of understanding, known as testamentary capacity. You must be able to understand the nature and effect of the Will, have a reasonable idea of what assets you have, be aware of the people you would usually be expected to provide for and not leave those people out because of any ‘delusion of the mind’. If you meet this test, known as the Banks and Goodfellow test, then you’ll have the necessary testamentary capacity to make a Will. In the same way, you also need capacity to make Lasting Powers of Attorney. The test for this is slightly different, but in brief, you will not be able to put LPAs in place if you are unable to make the decision because of an impairment of, or disturbance in the functioning of, your mind or brain. If therefore you are still able to understand the purpose of the LPAs and the authority you are giving to your Attorneys, and no fraud or pressure is being used to make you create the LPAs, then you will be considered to have the required capacity to put them in place. The law about this is in the Mental Capacity Act 2005. Depending on the case however, it might be advisable to involve a GP or specialist Mental Capacity Assessor when in the process of making a Will or LPA and your solicitor will be able to tell you if this is necessary. For example, where there could be a dispute or questions about the capacity of the person making the Will or LPA later on, involving a medical profession can help avoid problems in the future about the validity of the document. In some cases though, when a medical professional assesses the person, it might be that they say the person doesn’t have capacity. This being the case, your solicitor will be able to advise you about Court of Protection and Statutory Wills. Please visit our factsheet page for further information about this Need further help? If you would like to speak to a reassuring expert solicitor about putting a Will or LPAs in place, or any of the issues raised in this post, please do not hesitate to contact us. Get in touch Further reading Myth-busters The Myth of ‘Common Law’ Marriage Many couples in the UK choose to co-habit but not marry or have a civil partnership. Some do so under the belief that they will be protected by the fact that they have a “common law marriage” and will be treated much the same as a married couple in relation to tax, inheritance and many other issues. Myth-busters Myth-busters #1: Lasting Powers of Attorney are only for people with Dementia This is not true. Dementia and Alzheimer’s disease are not the only reasons why someone might need to act as your Attorney in the future. There are many reasons why you might decide to put Lasting Powers of Attorney (LPAs) in place. Myth-busters Myth-busters #2: Trusts mean you won’t need Probate or pay Inheritance Tax This is something we hear regularly from clients. They might have attended a seminar and been told to put all their assets into a Trust whilst they’re still alive, to circumvent the need for their Executors to get a Grant of Probate when they die. Sometimes, they might also be told that assets in the Trust won’t attract any Inheritance Tax. Unfortunately, this is not always the case. Help Guides Ready for clear, reliable legal advice? Contact us for straightforward advice that makes things easier, saves you money, and gives you peace of mind. Contact us