It is a sad reality in an ageing population that more people than ever are living with dementia in the UK.
Around 900,000 Britons are thought to have the disease, including more than 42,000 under 65 with early-onset dementia, and that figure is projected to rise to 1.6mn by 2040, according to the Alzheimer’s Society.
The belief that a diagnosis automatically invalidates a person’s right to record their own wishes, however, is a widely held misconception.
It is a progressive disease and those in the earlier stages will typically still experience periods of lucidity, in which case it may still be possible to make a valid will and a lasting power of attorney – the key requirement is that they have the requisite mental capacity to do so.
Making a will
Having dementia and Alzheimer’s does not automatically prevent someone from making or renewing a will. Individuals living with dementia can still protect themselves and their loved ones, so long as they have what the law calls ‘testamentary capacity’ – the mental capacity required to make a will.
There is a long-standing legal test for determining whether someone has testamentary capacity, which states that the will-maker must:
- be able to understand the nature and impact of making a will;
- be able to understand the extent of what they own;
- be able to understand who could make a claim if they are not named in the will (for example, a dependent child); and
- have no disorder of the mind that poisons their affections, perverts their sense of right, or prevents them exercising their natural faculties when deciding how to dispose of their property under their will.
Dementia is of course a disorder of the mind, but it does not automatically mean that a person lacks the understanding and capacity to make a will (even if their memory is not what it once was). Unless someone is in the advanced stages of dementia and Alzheimer’s, they could still have testamentary capacity.
On strict interpretation the requirement for capacity to make a will is not required at every stage of the will-making process. This is important for many clients with dementia because the nature of the disease is such that the individual may lack capacity or cognitive awareness at times and be completely lucid at other times.
The rule is that so long as the individual has testamentary capacity when giving instructions for their will, the will puts those instructions into effect, and if the individual understands they are executing a will for which they previously gave instructions, the will is valid.
In practice, this could mean someone with dementia could have testamentary capacity when giving instructions but lack testamentary capacity when they execute the will. That does not make the will invalid. However, it is worth noting that some solicitors will want to be satisfied the person making the will has capacity at the time of execution too if being done before them.
Unsurprisingly, there have been judicial decisions involving challenges in relation to wills made by individuals who were suffering from dementia.
The cases often provide lawyers with welcome clarity on how judges approach the issue. For example, an individual suffering moderately severe dementia was found to have testamentary capacity, even though he could not recall the terms of his previous will.