Getting Prepared, Just in Case…

This week is Dementia Action Week. With people living longer than ever before, many more people are being diagnosed with dementia than in previous years. With this in mind, it is important to be prepared for the future.

Leaving things to chance can result in difficulties for family members and loved ones at an already tricky time, and unfortunately costly and lengthy processes might be required to get matters sorted. Therefore, to avoid unnecessary trouble and expense in the future, here are our recommendations of what you can consider in advance:

  • Check that your Will is up to date

The executors you appoint in your Will must have mental capacity to administer your estate when the time comes. It can be the case that a Will is made several years before it is anticipated that one of the executors might suffer with dementia in future years. However, it is possible to appoint more than one executor, and also to appoint substitute executors if none of your executors can act. It is important to ensure that the wording of your Will actually enables substitute executors to act if one of your executors does not have mental capacity to deal with your estate, and to update your Will if it does not.

If an executor cannot act through lack of mental capacity, and there are no other executors appointed in the Will, it is possible in some cases to obtain authority to take on this role on their behalf. This can be achieved either by obtaining an order from the Court of Protection, or acting under a power of attorney if the executor has made one. This can be a complicated, and sometimes, longer process.  It is advisable to take steps to ensure that these eventualities are covered by your Will.

When considering who to leave gifts to, you should give thought to relatives who may be vulnerable and might lack capacity to manage these assets themselves, particularly if you wish to leave them large amounts of money. It may be worth seeking advice as to whether leaving a gift in trust is appropriate, so that your loved ones can benefit from the gift without being vulnerable.

  • Make a Lasting Power of Attorney

Many people would prefer a close relative or trusted friend to manage their affairs for them if they cannot make decisions themselves.  But what if your relative is not clear about your wishes, or is not around to act for you? Making a LPA allows you as much say as possible over who will make decisions for you if you lack capacity in future. There is an option to also appoint replacement attorneys, in case your attorneys cannot act for you at any point. You can state specific instructions or preferences about life sustaining treatment, or whether you would like to be cared for at home. You can also permit your attorney to assist with your financial matters before you lose mental capacity if you wish. This may be helpful, for example, if you cannot physically get to the bank to make payments.

You can make a Lasting Power of Attorney as long as you have mental capacity to do so. Someone who has dementia may not have sufficient capacity to manage all of their property and financial affairs, but may have enough understanding to decide to appoint someone that they trust as their attorney. This is usually a cheaper option than making an application to the Court of Protection for a deputyship.

  • Deputyship Appointments

If someone lacks mental capacity to make a Lasting Power of Attorney, but requires assistance in managing their affairs, an option may be to be appointed as their deputy. This involves obtaining medical evidence confirming that the person in question lacks mental capacity to manage their property and affairs and making an application to the Court of Protection.

  • Statutory Wills

Sometimes, circumstances arise where a relative may have made a Will several years ago, which is no longer in their best interests.  For example, if a large gift made in their Will would no longer reflect that person’s wishes and feelings. However, a Will cannot be changed if that person no longer has mental capacity to make a Will (testamentary capacity). In this situation, it may be worth seeking advice as to whether there is a strong enough case to ask the Court to make a Will on that person’s behalf if the costs of this can be justified.

If you would like any further advice or assistance with regards to any of the above, please contact a member of our Private Client team at our offices.

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