21 July 2020
Making a Will for someone who lacks mental capacity
When a relative is diagnosed with a debilitating condition, such as dementia or Alzheimer’s, it is important to put their affairs in order at an early stage. This will include ensuring that they have a valid will and making a lasting power of attorney. This needs to be done as soon as possible, before the question of whether they have sufficient mental capacity arises.
Assessing mental capacity
Mental capacity, in the context of making a will, broadly relates to whether a person is capable of:
- understanding what making a will means and its effect;
- appreciating the extent of his or her assets; and
- considering potential beneficiaries in a fair and objective way, unaffected by any condition that might affect his or her judgement.
If a person cannot do these things, then they will not have the mental capacity to make a will. Deciding whether this is the case is not always straightforward. Mental capacity, particularly in the earlier stages of a condition such as dementia, can fluctuate from day-to-day and the extent of a person’s understanding may not always be clear. It is possible for a person to lack mental capacity to manage their financial affairs, but to have mental capacity to make a will, as the tests that are applied are different.
Can a letter from a doctor help avoid uncertainty?
Where there is uncertainty over a person’s mental capacity or there is any possibility that a question mark might arise over this after their death, it is advisable to obtain a medical certificate of capacity. A GP should be able to provide this or, if in doubt, they will refer the matter to a specialist. A certificate of mental capacity should be sufficient to deal with any challenges to a will on the grounds of lack of mental capacity after a person’s death.
What if my loved one has already lost mental capacity?
If a person has already lost mental capacity, you may need to consider applying to the Court of Protection for a statutory will to be prepared on their behalf. This is a will made by the court, in the best interests of your loved one and taking account of:
- their past and present wishes and feelings, and in particular any relevant written statement made by them when they had capacity;
- any previous wills and letters of wishes; and
- any beliefs, values or other considerations that would have been likely to influence what they would have wanted if they had capacity to decide matters for themselves.
The Court of Protection is most likely to approve a statutory will if the person concerned has never made a will before or if there has been a significant change in their circumstances since their last will was prepared.
How can I avoid mental capacity becoming a problem?
If you suspect your loved one may be beginning to lose mental capacity, or they are in the early stages of an illness such as dementia, do not delay seeing a solicitor to start the process of making a will. You should also discuss creating a lasting power of attorney giving a friend or relative power to look after your loved one’s affairs when they no longer have mental capacity to do so themselves.