Last week it was announced that Dame Barbara Windsor is suffering from Alzheimer’s disease, the most common cause of dementia. According to Barbara’s husband Scott Mitchell, she first showed symptoms in 2009 when her close friends and family noticed her occasional repetitiveness and confusion. Barbara was officially diagnosed in 2014, and in recent weeks her symptoms of memory loss and confusion have grown steadily worse.
Barbara’s story highlights the importance of dealing with your legal affairs at an early stage. The longer things are left the higher the risk that a person will lose mental capacity. This means the ability to understand the information relevant to a decision, retain that information, weigh up the information and communicate that decision.
Advance care planning for a person with dementia means putting plans in place for the future, in case they can no longer manage their affairs. One way of doing this is to complete Lasting Powers of Attorney. These documents allow chosen attorneys to help make decisions and manage a persons affairs. There are two different types:
- Health and welfare; the attorneys can make decisions about medical treatment, care home decisions and life sustaining treatment
- Property and finance; the attorneys can make decisions about managing bank accounts, selling property and paying bills.
A person with dementia may still be able to put Lasting Powers of Attorney in place, as long as they still have capacity. If capacity has been lost then it will be necessary to apply to the Court of Protection for a Deputyship Order. This is time consuming, costly and may not cover all of the wishes of the person in question.
It is also important for a person with any degenerative illness to ensure they have made their Will. Any person can make a valid Will as long as they are deemed to have “testamentary capacity”. This means that a person must understand:
- What making a will means and the effect that it will have.
- What you own and how this might change, including what you may owe or be owed in future.
- Who might expect to be named in your will, and why you are choosing to either leave or not leave things to them.
Even if a person has dementia they may be able to make a Will. Memory loss does not necessarily equate to a lack of understanding or decision making ability.
However, if a person with dementia makes it Will it may be challenged by family who have perhaps been left out the Will or left a lower inheritance than expected. A claim may be brought on the basis that the Will is not valid, because the person did not have the requisite capacity. As such, where a person wishing to make a Will is elderly or suffers from an illness their lawyer should observe the ‘Golden Rule’. In these circumstances the opinion of a doctor or medical practitioner should be obtained, confirming that the testator (the person making the Will) has capacity and understanding.
For more information and advice about making a Will and Lasting Powers of Attorney for you or someone you care for, please contact a member of our Private Client team at any of our four offices who will be happy to provide advice and make an appointment for you – York, Selby, Malton or Pickering.
There are many useful organisations you can also look to for help and advice and we work with many local organisations. If you would like a copy of the ‘Take Care CareGiving Guide’ that Home Instead Senior Care York and Ryedale has produced, please contact Sarah Edwards at our York office on 01904 624185. We have a two page article in the care guide about Lasting Powers of Attorney and there are a number of pages of useful organisation contact details in the back of the guide including Alzheimer’s Society in York, Dementia Forward, Older Citizens Advocacy York, York Carers Centre and much more.