Planning Ahead In England And Wales
In England and Wales people can write an advance decision. This is sometimes written as ADRT – advance decision to refuse treatment – and used to be known as a living will or advance directive. They can also write an advance statement to express their wishes about future care . They may also wish to appoint a Lasting power of attorney for health and welfare.
What Are The Risks Of Letting A Person With Dementia Sign Legal Documents
There are a few risks to consider before letting a person with dementia sign legal documents.
- First, the person may not have the capacity to understand what they are signing. This means that they may not be able to comprehend the implications of the document or make an informed decision about whether or not to sign it.
- Additionally, the person with dementia may not be able to remember what they have signed, which could lead to confusion or misunderstanding down the road.
- Finally, if the person with dementia changes their mind about the document after signing it, they may not be able to have it undone.
Before letting a person with dementia sign any legal documents, it is important to speak with their doctor or another medical professional to ensure that they have the capacity to understand what they are signing.
It is also important to make sure that the person with dementia is comfortable with the decision and understands the implications of the document. If there are any concerns, it may be best to have a lawyer or other legal representative present when the document is signed.
About the Author: Esther Kane
Property And Financial Affairs Lpa
A property and financial affairs LPA gives your attorney the power to make decisions about money and property for you, such as:
- managing a bank or building society account
- paying bills
- collecting benefits or a pension
- selling your home
Once the LPA is registered with the Office of the Public Guardian, it can be used with your permission, even if you’re still able to deal with these things yourself.
Or it can be held in readiness for when you’re no longer able to make decisions for yourself.
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Planning Ahead In Northern Ireland
In Northern Ireland people can also make an advance directive and advance statement. They may appoint power of attorney under the Northern Ireland system, Enduring power of attorney and controllership.
Legal issues in the late stages of dementia
Find out more about advance decisions and lasting power of attorney for people with dementia.
Could My Loved One Still Sign Certain Legal Documents
In some circumstances, an individual suffering early signs of dementia may still be able to sign a will or other documents. In order for them to be considered mentally competent, certain criteria must be met. Essentially, it must be proven that the individual understands the implications of the legal documents they are signing. This is also called testamentary capacity, and is necessary if loved ones wish for the documents to be recognized by the court.
A person may still be considered mentally competent enough if they:
- Can express that they understand the extent of their property, such as what belongs to them and how much it is worth.
- Remember and can identify who their relatives and designated heirs are
- Demonstrate that they understands the purpose of a will and how it will distribute their property
Even if a loved one with a mental illness initially had a legal document or will approved, that does not mean it will be considered valid indefinitely. Family members or relatives may choose to contest a will, especially if they believe the individual lacked the mental capacity to understand what they were signing. This could lead to further complications and issues during the probate process.
This is why you need a lawyer to step in and clearly demonstrate that the entire process was valid. Want to learn more about protecting your estate? Contact our firm to get started.
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Nsw Court Of Appeal Cases
CASE No.1 Croft v Sanders NSWCA 303
This case involved the deceased, Warwick Croft who signed a Will in September 2013. Mr Croft died in 2016 and was aged 85.
It was alleged by family members that Mr Croft had suffered dementia and hallucinations. He believed his daughters were running a brothel, someone had kidnapped his wife and a daughter was possessed by demons.
The medical evidence suggested the delusions or hallucinations were episodic rather than continuous and Mr Croft was not under delusions when he gave instructions to his solicitor to prepare his Will. Medical evidence found a mild underlying cognitive impairment.
Mr Croft saw a psychiatrist in April 2013 and he saw no sign of memory disturbance. However, other medical evidence disputed the psychiatrists findings.
Mr Croft saw Mr Miller, an experienced estate planning solicitor to fix his Will in 2013. Mr Miller said that it was his usual practise to obtain a letter from the clients treating doctor if a client had questionable capacity.
Mr Miller took detailed file notes of his attendance with Mr Croft.
Mr Miller was previously acquainted with Mr Croft as they had both attended the same local Church on a few occasions.
In August 2013, Mr Crofts son-in-law and other family members had lunch with Mr Croft and evidence was given to the Court that Mr Croft engaged in general discussion at the table and there was nothing unusual in his demeanour or behaviour.
The September 2013 Will was upheld and valid.
Can Someone With Dementia Sign Estate Planning Documents
Most, if not all, of our clients have encountered a loved one suffering from dementia. Dementia itself is not the disease, but is a symptom of one of a number of underlying brain diseases, the most notorious of which is Alzheimer’s Disease. However, not everyone who has dementia has Alzheimer’s.
When we are around a person with dementia, we may notice the symptoms quite subtly at first. Even after they become more noticeable, we see them flow in and out of moments of lucidity and confusion without warning, and often without a seeming trigger.
This is the nature of dementia. So how do we know if a person with dementia can sign legally binding agreements including a will or trust? Answering that question is almost entirely specific to the facts of the case. That is why this is one of the most perplexing and often litigated area of an estates and trust practice.
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Who Can Have Power Of Attorney
Selecting who has power of attorney is an important decision. By law, the person who is selected is called the agent. This person should be a trustworthy adult who is willing and able to handle complex medical and financial decisions and responsibilities on behalf of the diagnosed older adult.
Sometimes, families choose to split power of attorney duties so that no one person is in charge of every decision. In these cases, they divide duties into healthcare decisions and financial decisions, creating two powers of attorney, one for each category.
How Do I Get Power Of Attorney For A Parent With Dementia
When your loved one receives a diagnosis of Alzheimers disease or another type of dementia, your entire family has much to process. In addition to weathering the emotions that naturally follow this diagnosis, families must convene with the diagnosed older adult in order to make plans for their current and future needs.
This can feel overwhelming, especially as you are trying to come to terms with the diagnosis. However, it is crucial that your family uses the early stages of the disease to fully understand the diagnosed older adults wishes and input for moving forward.
Just one thing to consider during your planning is the topic of advance directives, including power of attorney. It is much easier for everyone to be on the same page in regard to power of attorney long before it is necessary because obtaining power of attorney when the older adult in question is already well into the disease process is more time consuming and difficult.
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Supporting A Person In The Later Stages Of Dementia
The later stages of dementia can be a challenging time both for the person experiencing dementia and for those close to them. Find out what you can expect and where you can get help and support.
Supporting in the later stages of dementia
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 fathers Solicitor to find out more about this.
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What Does ‘testamentary Capacity’ Mean
To make a valid will, the individual needs to have testamentary capacity. This will be put into writing when the will is signed.
To have testamentary capacity the testator must be capable of understanding the following:
- what a will is, and the nature and effect that it will have
- the extent of what they will be leaving in their will
- the obligations which someone in their position would usually have towards their family and other relevant individuals
The Mental Capacity Act 2005 refers to incapacity if a testator is unable to understand the information relevant to the decision, or retain the information, or communicate this decision. However, someone who struggles to retain the memory of their decisions may still have capacity to make and execute a will. Alternatively, a person who does not have capacity to make a will may still be able to carry out other acts . Incapacity can take time to develop, particularly with dementia.
Predicting The Future: A Quick Easy Scan Can Reveal Late
Late-life dementia is becoming increasingly common in people after 80 years of age.
A new long-term study has shown a simple and common scan can reveal if people are at increased risk of developing the condition late in life.
Late-life dementia develops when brain cells are damaged from several diseases, some of which cause narrowing of the blood vessels to the brain.
Edith Cowan University researchers have discovered an important link between vascular health and late-life dementia.
This link is calcification of the plaques which can build up within the abdominal aorta, which is the largest artery in the body and supplies oxygenated blood from the heart to the abdominal organs and lower limbs.
This calcium build upknown as “abdominal aortic calcification,” or AACcan be very useful to predict cardiovascular disease risk such as heart attack and stroke.
But researchers have now found it is also a reliable marker for late-life dementia.
Led by ECU’s Nutrition and Health Innovation Institute and Center for Precision Health, the international team included researchers from the University of Western Australia, University of Minnesota, Sir Charles Gairdner Hospital and the Marcus Institute for Aging Research, Hebrew SeniorLife, Harvard Medical School.
They examined the AAC results in 968 women from the late 1990s, and then followed their health status for over 15 years.
“There’s an adage in dementia research that what’s good for your heart is good for your brain,” he said.
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What Is The Mental Capacity Act
The Mental Capacity Act is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.
Your doctor, social worker or other medical professional can help assess mental capacity.
If someone lacks capacity to make a decision, which needs to be made for them, the MCA states the decision must be in their best interests.
The MCA has a checklist to help decide what’s in a person’s best interests.
In order to grant power of attorney to someone to act on your behalf, make an advance decision and make a will, you must have mental capacity to do so.
This is why it’s important to put plans in place as soon as possible.
Seek The Help Of An Probate Attorney
In order for a will to be valid, the person signing must have testamentary capacity, which means he or she must understand the implications of what is being signed. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.
Generally, you are considered mentally competent to sign a will if the following criteria are met:
- You understand the nature and extent of your property, which means you know what you own and how much of it.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
Family members may contest the will if they are unhappy with the distributions and believe you lacked the mental capacity to sign it. If a will is found to be invalid, a prior will may be reinstated or the estate may pass through the states intestacy laws . To prevent a will contest, your attorney should help make it as clear as possible that the person signing the will is competent. The attorney may have a series of questions to ask you to assess your competency. In addition, the attorney can have the will signing video recorded or arrange for witnesses to speak to your competency.
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Dementia And Power Of Attorney: What To Do If Someone Cant Or Wont Sign A Poa
The number of Americans with different forms of dementia, such as Alzheimers disease, continues to grow at an alarming rate, according to the Alzheimers Association.
If youre caring for someone with dementia, you may face a legal catch-22 you hadnt anticipated: they cant or wont sign a power of attorney. Thats the legal document that allows someone else to make critical medical and financial decisions on their behalf when theyre not able to.
Dementia and power of attorney issues can cause unwanted complications in a persons care. Their inability or refusal to sign essential legal documents may leave family with limited options that may not be in the persons best interests.
Ron Anderson, an ARAG® network attorney, says There are common scenarios that we see in our practice regarding the impact of dementia on making important decisions and estate planning.
Find out about three common scenarios involving someone with dementia and their power of attorney, some of the options available in these situations, and what steps to take to avoid costly problems.
Scenario : The Person Is Mentally Competent But Fails Or Refuses To Sign A Power Of Attorney
In this scenario, the person with dementia is still able to make sound decisions, but hasnt done any estate planning or has refused to set up any powers of attorney or co-owned financial accounts.
At this point, says Anderson, the person is still entitled to make decisions on their own regarding finances and health care.
They could sign financial and health care powers of attorney to designate a trusted person to make these decisions for them. Or, they could choose to make no estate planning decisions at all.
This can create a very difficult situation for everyone involved.
Option 1: Suggest standby conservatorship and/or guardianship insteadOne option is to have an open, honest discussion with the person. Emphasize the importance of having a financial or health care power of attorney and the negative consequences of not having any powers of attorney in place.
If the person still refuses to sign a power of attorney, you could suggest that they consider signing standby conservatorship and/or guardianship papers instead.
These documents would allow them to choose who they would want to make financial or healthcare decisions for them. Later, these documents would allow the court to hold a voluntary proceeding.
Doing this would be simpler, easier, and cheaper than if an involuntary guardianship or conservatorship were required.
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Can A Person With Dementia Make A Will
- A person has to have testamentary capacity to make a Will or change their current Will. That is, they need to understand what they are doing and provide adequate instructions to their solicitor.
- If a person has dementia, in the many forms it can take, they may not appear to have the understanding and reasoning required to make a new Will.
- However, a person can have capacity to make a new Will even though they have been diagnosed with a form of dementia.
- An experienced estate planning solicitor needs to be involved to ensure a Will is valid.
In 2019 two NSW Court of Appeal cases looked at Wills signed by deceased persons who appeared to be suffering dementia at the time the Wills were drafted. The Court gave significant weight to the evidence from the solicitors who drafted the Wills and their file notes, recollections and usual practise in drafting. This was regardless of the medical evidence which provided in both cases the deceased was suffering varying degrees of dementia.