Can You Still Make Legal Documents if You Have Dementia or Alzheimer’s Disease?

February 2025

The ideal time to put legal documents such as wills, powers of attorney and advance statements in place is generally long before you expect to need them. Unfortunately, life is unpredictable, and we are not all dealing with ideal circumstances.

Sometimes, individuals might only consider writing legal documents when it becomes clear they are about to need them, such as after a life-changing diagnosis. In other cases, there might be pressing reasons why changes need to be made to documents that are already in place (for instance, if an appointed executor or attorney is no longer able to act).

In situations such as this, the act of writing legal documents can become fairly urgent. This might be because the person writing them is expecting to be coming to the end of their life, or it might be because there is a concern that a condition such as dementia or Alzheimer’s disease is becoming an issue.

Though it’s not true to say that it’s never too late to speak to a solicitor about legal documents, it might be possible to do so for longer than you think.

What about if you have dementia or Alzheimer’s disease?

We can only imagine how difficult it must be to receive a diagnosis of dementia or Alzheimer’s disease. These are devastating illnesses that can have a huge impact on both the individual facing them and on their families.

There are obviously all kinds of things to think about if you are facing this kind of diagnosis. Though you are likely to want to spend as much time as possible with those closest to you, it really is very important to put plans in place for when you are no longer able to make decisions for yourself. Legal documents such as Lasting Powers of Attorney (LPAs), wills and advance statements can all help to ensure that your wishes will be carried out on your behalf in the future.

It is obviously necessary for there to be strict rules about who can and cannot make important legal documents. This is vital for ensuring fairness, impartiality and that no one is being taken advantage of. However, simply having a diagnosis of dementia or Alzheimer’s disease doesn’t automatically preclude you from making legal documents. Your solicitor will be more concerned with whether or not you are considered to have mental capacity.

Mental capacity is a legal concept concerned with whether or not an individual has the ability to fully weigh up their options in order to make an informed decision.

How is mental capacity determined?

The question of mental capacity is vital in terms of making legal documents, as individuals need to be able to fully think through the consequences of the plans they are seeking to put in place, including how those plans would affect themselves and those closest to them.

If there is any question surrounding mental capacity, your solicitor will carry out the test for determining this as set out in the Mental Capacity Act 2005. This is a fairly straightforward assessment which involves questions such as:

• Is the individual able to understand all the information that’s relevant to making the decision?
• Can they remember that information for long enough to be able to think it through?
• Is it possible for them to apply the information to their own situation?
• Are they able to come to a decision and then communicate it effectively to others?

If the legal document that is being made is a Will, your solicitor will also want to be certain that the individual passes the Banks v Goodfellow tests for testamentary capacity.

For this, they must:

1. Understand the nature and consequences of making a Will, including what it will mean for the distribution of their assets.
2. Have a full awareness of the value of their estate.
3. Recognise the list of people who might have a claim on the estate, and how they will be affected by any decisions made in the Will.
4. Be free from any mental impediment that may affect their judgement.

What about if not everyone agrees?

The issue of mental capacity is not always a simple one. Sometimes, an individual might remain capable of making some decisions but not others, or they may be considered to have retained mental capacity on good days but not all days.

There may also be clashes between family members and/or the individual themselves, who may disagree over whether or not the individual is capable of doing something as important as making a Will, an LPA or an advance statement. In these situations, a specialist solicitor will be able to help determine the best next steps. This could be to engage a specialist mental capacity assessor. Your solicitor will be able to refer you to a professional with the relevant medical skills and experience to carry out this role.

In certain circumstances, it might be necessary for the case to be considered by the Court of Protection. The Court of Protection are able to rule on whether or not they believe an individual has sufficient mental capacity to make or update legal documents.

In cases where it’s determined that it is too late for an individual with dementia or Alzheimer’s disease to make legal documents, their family members may be able to seek support from the Court of Protection in order to put any necessary plans in place.

Should you take special precautions when making legal documents?

If you are making legal documents after a diagnosis of dementia or Alzheimer’s disease, your solicitor might recommend taking some additional legal precautions. This is to help protect any documents from legal challenges later on, such as if someone were to claim documents were not valid because you were not in your right mind when you made them.

To avoid the risk of this, you could seek to:

• Include a report from a medical professional with your legal documents, confirming that you are indeed of sound mind at the time the documents are made.
• Discuss your plans for the legal documents with your family members to ensure that everyone is clear on your wishes. If everyone has been included and is able to accept the reasoning behind the decisions you are making, they are less likely to dispute things later on.

If you have any concerns about how a medical diagnosis may affect your plans for the future, please don’t hesitate to get in touch. We’ll be able to talk you through the options in your individual circumstances and help you reach the best solution for you.