My Father has Dementia, if he Makes a Will, will it be Valid?
Just because someone suffers from a condition such as Dementia or Alzheimer’s does not mean they cannot make a Will. However, in England or Wales certain criteria must be met to ensure that when they signed their Will they were mentally competent enough to do so.
What Makes a Will Valid?
There are a number of formal requirements that need to be fulfilled to ensure that your father's Will is valid, including that of "testamentary capacity". Testamentary capacity means that your father must have the legal capacity to make or change his Will. This decision will be made by the Solicitor helping him to write the Will and they may need to obtain medical advice to confirm.
When deciding if someone is mentally competent to sign a Will the Court Will consider if they meet all the following criteria:
- They understand the nature of making a Will and its effects
- They understand the extent of the property they are giving away
- They have the capacity to understand who they are giving the property to.
What if My Father doesn't have Testamentary Capacity?
If it is felt that the person making the Will no longer has testamentary capacity because of their dementia then they cannot change or amend their Will. Also, no one can make or change their Will on their behalf, except for the Court of Protection, who may in certain circumstances make a statutory Will. You will need to contact your father’s Solicitor to find out more about this.
Can I Act as a Deputy to My Parent's Will?
Under the Mental Capacity Act 2004, people can choose someone to manage their affairs when they no longer have the capacity to do so. This is called a Lasting Power of Attorney.
Anyone can act as your father's Attorney as long as they are over 18 and not bankrupt when they sign the Lasting Power of Attorney application form. Your father can also have more than one person to take care of his affairs and act as his Attorney.
The role of Attorney comes with great responsibility and power, so it is important that your father thinks carefully before choosing. It is important that he can trust them to make decisions in his best interests.
What is the Golden Rule?
The 'golden rule' allows a medical professional to witness or approve a Will that is made by an elderly person or someone with a serious illness such as Dementia or Alzheimer’s. They must only do this is if they are satisfied that the person making the Will has the capacity to do so. It is also important that they maintain a record of this for the future.
Although this is no guarantee that the Will is valid it does provide strong evidence that the person making the Will was doing so with mental awareness. Emotions often run high when a Will is contested, but the Court will only take facts and evidence into account when making a decision.
This information was originally published on our website on 02/07/2013.
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