MOST people can agree on the importance of arranging your affairs so that your loved ones receive a fair share of your estate when you die, and the Crown receives as little as possible. What they cannot agree on, it seems, is the rest. Solicitors report yearly increases in will-related disputes: in 2013, The Independent cited a 700-per-cent rise in High Court challenges in the previous five years.
One of the key factors in determining a will’s validity is the mental capacity of the person at the time the will was made. This question lies at the heart of many disputes. Carla Rist, of the UK-wide solicitors Irwin & Mitchell, says: “Challenges to a will based on capacity are very frequent — one of the most common, in fact. Usually, the first thing people say is, ‘I don’t think they knew what they were doing.’”
So what does this mean for the estimated 850,000 people in the UK with dementia, a disease that can so catastrophically interfere with a person’s cognitive abilities? It seems likely that the number of inheritance disputes will only grow, especially in light of a recent report by Alzheimer’s Research UK, which predicted that a third of all people born this year in the UK would eventually develop dementia.
But having a dementia diagnosis does not necessarily prevent a person making or amending a will, particularly in the early stages of the disease. And there is an additional incentive during November, which is Will Aid’s Make a Will Month, a charitable initiative that allows people to draw up a simple will with a participating solicitor, in exchange for a suggested donation of £95 to the charity Will Aid.
“There is nothing to prevent a person making a will if they have the requisite capacity,” Ms Rist says. “‘Testamentary capacity’ — the legal term for it — means simply that the individual understands that they are making a will, and what the consequences of this are; they also need to be able to demonstrate an understanding of the assets they have to dispose of, and provide details of the people they are leaving a share of their estate to, or at least show an understanding of those who might expect to be left something by them.”
But, as anybody with experience of dementia knows, there are good days and bad days. “We would be looking at whether or not they had capacity on the day they made the will,” Ms Rist explains.
A solicitor may use his or her own judgement to ascertain this, or, if there’s any doubt, the solicitor may employ what is known in the trade as ‘the golden rule’, which means seeking medical confirmation. This is usually done through a GP, who, in turn, might make a referral to one of the NHS memory clinics that specialise in assessing and diagnosing dementia. Alternatively, a professional who has a long-standing medical relationship with the individual — a psychiatrist, for example — can provide confirmation of capacity.
“A solicitor might suggest that a client contacts their family doctor; they can usually set out in a letter what the test is,” explains Ms Rist. “It depends from surgery to surgery, but the important thing is to be able to show that the practitioner has been properly advised, to limit any potential for a challenge.”
If the person’s capacity varies from day to day, it is often recommended that the medical practitioner be present at the will signing. “If there is a serious concern,” a partner at Wiseman Lee solicitors, Devorah Ormonde, says, “we might even ask the doctor to witness the will when it is signed, because it may have been a few weeks since they gave medical confirmation of capacity.”
The important thing is to act quickly, while the person making the will is still capable. Linda Walker just caught the window for her aunt, Daisy Waterson, who, at the age of 70, had dementia, and was showing signs of deterioration.
“She was still living on her own at home, with carers coming in,” Ms Walker explains. “We didn’t know if she’d had a will made, but our family solicitor advised me to make an appointment for her; so we did. She did already have one, but she was able to update it.”
THERE are a few options remaining, if a person has advanced dementia but has not made a will. “Friends and family can apply to the Court of Protection [the court that deals with the affairs of people who lack capacity] to make a statutory will if there is no chance of the person regaining it,” Ms Rist says .
“You could do so on the basis that they haven’t [made a will], and they would have wanted to. If it’s a decision between the offspring to divide everything equally, and they all get on, it’s likely to be OK. But it’s potentially messy if lots of people can’t agree. If you were applying for the estate to be distributed according to intestacy rules — the same as dying without a will — anybody who stood to benefit from a previous will needs to be notified. It can be very drawn out.”
FOR someone with a dementia diagnosis, it is equally important to appoint a power of attorney while he or she is still deemed capable. A Lasting Power of Attorney (LPA) gives a trusted person the legal authority to make decisions on one’s behalf, if and when it becomes necessary.
There are two types: a property and affairs LPA, which covers decisions about finances and property; and a health and welfare LPA, regarding decisions about a person’s health, including day-to-day care and medical treatment. With a financial LPA, you can choose whether you want your “attorney” (the trusted person) to start acting on your behalf straight away, or only once you have lost capacity; but a health LPA can be used only once the person has lost the ability to make decisions for himself or herself.
The senior policy officer of the Alzheimer’s Society, Laurence Thraves, says: “The Mental Capacity Act is clear that you must still be consulted and involved in decisions wherever possible.” The attorney must take everything on a case-by-case basis, starting from the assumption that the person is capable, and looking for ways to help him or her to make a decision rather than just taking control. There are strict rules governing the behaviour of any appointed attorney: an LPA can be cancelled if he or she is shown not to be acting in the person’s best interests.
Bill Collier, who, with his brother, was appointed joint LPA for his 88-year-old mother, says: “We set up a financial LPA three years ago. It was a long haul: it’s meant to take three months, but it took nine.” During the process, his mother was interviewed separately by the solicitor, in order to determine whether she was mentally capable of understanding what it meant.
Only a few months after it was finally set up, however, the brothers felt it necessary to start exercising their powers under the LPA because of their mother’s rapid deterioration. Now, they manage her rent payments, care package, and other bills. Had they missed her window of capacity, it would have been a great deal more complicated.
“Under the LPA, we are supposed to help her make decisions; but it’s difficult when most of the time she doesn’t even know what day of the week it is. For example, my brother and I both got new cars; so mum said, ‘I want a new car’ — even though she had one sitting on the drive, which she wasn’t even allowed to drive any more. We also found out she had double motor insurance with the AA and RAC, and two lots of home insurance; so we sorted that out.”
Mr Wraves says: “It is important to emphasise that a person with dementia may make a decision that someone who is well thinks unwise. The principle is to make all efforts to include them in decisions wherever possible.” This, as Mr Collier found, can pose challenges in practice.
SUE CODY, whose husband, Steve, a former police officer in east London, now has an advanced case of vascular dementia, regrets not setting up a health-and-welfare LPA. She is the attorney for his financial affairs, but health-and-welfare LPAs were not in place at that time that he was diagnosed, aged 48.
“Most of my wishes are respected, and the carers and I are in agreement; but I wish it had been made more official,” Mrs Cody says. A formal LPA would have given her the right to approve or refuse certain medicine or treatment on behalf of her husband, as in the case of resuscitation, or taking antibiotics.
Mr and Mrs Cody did manage, however, to make a living will, or “advance directive” as it is now known. It arranges for Mr Cody’s brain and spinal cord to be donated to the neurological hospital where he has been treated. Alzheimer’s researchers are particularly in need of such donations, but they must be made within 72 hours of death — a timescale that an ordinary will could not achieve.
UNFORTUNATELY, where there is money to be made, unscrupulous behaviour can occur, even within families. Jill Watson discovered that her nephew had been siphoning off money from her mother’s account, who had mild dementia, to the extent that he was able to remortgage his house. Mrs Watson’s mother, with the help of her daughter, applied for an LPA while she still had capacity to sign the form. “We got there in time, but she was vulnerable,” Mrs Watson says.
As the attorney, Mrs Watson managed to close the account her nephew was taking money from, and set up a new one from which all her mother’s bills could be paid. Then they could begin to pay off the debts she had accrued. “Now I have control of the bills, and my nephew can’t touch anything,” Mrs Watson says. “Before that, he could have gone in and got her to sign anything. When we went to the solicitor, he said this sort of thing is very common, especially with grandchildren. So did the bank.”
If a loved one has already lost mental capacity to set up an LPA, however, and you want to help, you may be able apply to the Court of Protection to become a deputy; but it is a much more onerous process. In effect, the responsibilities are the same as for a power of attorney, and can either be for financial or health-and-welfare issues.
The lesson here is: when it comes to dementia and putting in place strategies to protect oneself and loved ones, it seems that there is no time to lose.
Some names have been changed.
Will Aid Month
IF YOU have not made a will, you can take the opportunity next month. November is Will Aid’s “Make a Will Month”, and offers the chance to make an official will, at the same time as making a difference to the lives of many people in need, in the UK and around the world.
Instead of charging their normal fees for a basic will, during the month of November participating solicitors will invite will-makers to make a voluntary donation to the Will Aid charities. The suggested minimum donation is £95 for a single basic will, or £150 for a pair of basic mirror-wills. Solicitors are now taking appointments, and the advice is to book as soon as possible, as demand will be high. A full list of participating solicitors is available on the Will Aid website, www.willaid.org.uk, or you can phone the hotline on 0300 0309 558.
Since it began in 1988, the scheme has raised £16 million for the work of Will Aid charities in the UK, and around the world. These include Christian Aid, the NSPCC, Action Aid, the British Red Cross, Save the Children, Age Concern, Sight-savers, Trocaire, and SCIAF.