Managing Wills And Assets With Alzheimer's
The Law Of…Will Making With Alzheimer's
Dementia can be debilitating. Thinking about the future and how the disease may progress is not a very comfortable prospect. For these reasons alone it is imperative that a person should make sure all is in order to protect their assets and the welfare of their family. Making a Will is an important step in this direction
Erika Sinclair, National Head of our Private Client team, answers some key questions on what you might need to consider if you are elderly and considering making a Will, and why it is so important to address the issue sooner rather than later.
When Should I Make A Will?
If you are over 18 years old and own assets in your own right, it is never too early to make a Will. Writing a Will can seem difficult, but the right kind of help or guidance in writing a Will can make the task a lot less daunting.
First of all, it's important to understand exactly what assets you own before making your Will. This may typically consist of cash in bank accounts or other investments, or your home as well as personal possessions.
By preparing your Will you ensure that upon your death, such assets will pass to the people you want to inherit them. You can also appoint executors in your Will who are responsible for ensuring that the provisions in your Will are followed. If you have children who are under 18, then you may wish to appoint guardians who will be responsible for looking after your children in the event of death.
What If I Don't Make A Will?
If you do not have a valid Will when you die, then the laws relating to intestacy will apply.
These laws lay down strict rules as to what happens to your property and belongings and who can administer the estate on death. Intestacy gives priority to those with family relationships.
In short, if you die without a Will, you shall lose control over what happens to your property, well-earned savings and personal belongings after death. In such a situation, the people you want to inherit could potentially lose their inheritance.
It is a well-known fact that people are living longer and the population is ageing, but that doesn’t mean you should put off making a Will.
Simpson Millar has a team of specialist lawyers who together have many years of experience in advising all manner of clients on how to prepare their Wills to meet their individual circumstances and ensure that their loved ones are looked after on their death.
What Happens If I Haven’t Made A Will And I Develop Alzheimer's?
You can only make a Will if you have sufficient mental capacity to do so. If you are suffering from any mental illness, your adviser will need to be made aware of this so they can advise what steps will need to be taken before preparing your Will.
Ultimately your solicitor will need to be confident that you have sufficient mental capacity to make a Will and there are well-established principles upon which your solicitor will make that judgment. If your solicitor has any doubt as to your capacity to make a Will, they will likely need to consult with a specialist medical professional.
Having Alzheimer's does not necessarily mean that you cannot make a valid Will, and often clients with early-stage dementia may still be able to make one.
In these circumstances, you should always ensure you consult with a qualified legal professional to ensure that any documents prepared are valid and not open to challenge by any potentially disaffected family members at a later date.
What Happens If I Lack The Mental Capacity To Make A Will?
If you or a family member no longer has the capacity to make a Will, then upon the death of that person, if there is no Will, the laws relating to intestacy will apply.
In certain circumstances, where an individual has lost capacity and has no Will or needs to change their Will, it may be possible to apply to the Court of Protection for a Statutory Will to be prepared.
How Important Is It To Have A Lasting Power Of Attorney?
There are two types of Lasting Powers of Attorney, one dealing with finance and the other dealing with health. Again, you can only prepare these documents if you have the mental capacity to do so.
The documents allow you to appoint someone, or a number of people, to act on your behalf or take decisions for you where you no longer have the mental capacity to do so. They are incredibly useful documents to have in place if you lose capacity either due to illness or an accident, but they are also incredibly powerful, so great care must always be taken when they are prepared.
Like Wills, Lasting Powers of Attorney can be a useful planning tool for the future as they give you control over who is to make decisions for you when you are no longer able to do so for yourself.
"My experience is that it is always better to seek legal advice sooner rather than later. As the expression goes…prevention is better, and cheaper, than cure! It is also imperative that you seek advice from trusted legal professionals, with particular expertise in what is a very technical area of the law.”
“There are also many risks associated with preparing such documents as Wills and lasting powers of attorney. For peace of mind, it is worth ensuring that they have been prepared correctly in accordance with the law."
Simpson Millar's Private Client team specialise in the production of such documents. We also offer a range of associated legal services for the elderly and their families, such as our Care Home Fees Recovery team.
If you need advice, please call our Freephone number, or alternatively send us a message using our digital enquiry form.