A diagnosis of dementia can raise difficult questions for families, particularly when a loved one wants to make or change their Will. One of the most common assumptions is that once someone has been diagnosed with dementia, it is automatically too late for them to change their Will. However, this isn’t necessarily the case.
At AFG Law, our Private Client team regularly assists individuals and families with Wills, mental capacity, Powers of Attorney and later-life planning. For people with dementia, the important question is not simply whether they have a diagnosis, but whether they have the necessary testamentary capacity at the time the Will is made.
The following case study illustrates how this can arise in practice.
Case Study: Dad Has Dementia and Wants to Change His Will
Mr X had made his Will around 12 years earlier. At the time, he left his estate equally between his two children. Several years later, he was diagnosed with dementia. As his condition progressed, his children began helping him with everyday tasks and one child took a particularly active role in supporting him.
Mr X subsequently told his family that he wanted to change his Will. His circumstances had changed considerably since the original Will was prepared, and he wanted his new Will to reflect this.
The family were concerned as his symptoms of dementia included problems with his short-term memory and occasional confusion. They assumed that his diagnosis meant he could no longer make a legally valid Will.
However, dementia does not necessarily mean that someone lacks the mental capacity required to make a Will.
The appropriate next step was therefore not to assume that Mr X could or could not change his Will, but to assess whether he understood the decision he wanted to make.
What is Testamentary Capacity?
To make a valid Will, a person must have testamentary capacity. Broadly speaking, this means that they need to understand that they are making a Will and what effect it will have, have a general understanding of the property they are disposing of, and appreciate the people who might reasonably expect to benefit from their estate.
A person with dementia may struggle with some everyday tasks but still be capable of understanding these particular matters. Equally, another person may appear relatively independent but lack sufficient understanding to make a Will. Capacity is therefore specific to the decision being made.
Does a Dementia Diagnosis Prevent Someone Changing Their Will?
No. A diagnosis of dementia by itself does not automatically prevent someone from making or changing a Will. This is because dementia affects people differently. The symptoms of dementia can also vary considerably as a condition progresses.
It is for this reason that it is important to seek advice from an experienced legal professional rather than relying on assumptions made by a family member.
Where there are concerns about mental capacity, additional safeguards may be appropriate. Depending on the circumstances, this could include obtaining medical evidence or asking an appropriate healthcare professional to assess capacity.
Relevant medical records may also become important if the validity of the Will is challenged after the person’s death.
Why Should Families Act Quickly?
Where someone with dementia has expressed a clear wish to review their Will, it is sensible to act quickly. That does not mean rushing them into making a decision. It means obtaining appropriate legal advice while they may still have sufficient capacity to make their own choices.
Dementia is often progressive, and someone capable of making a Will today may not necessarily retain that ability indefinitely.
Taking the appropriate legal steps early can therefore preserve the person’s ability to make their own decisions rather than leaving matters until their options become more limited.
Can Someone Use a Power of Attorney to Change the Will?
No. A Power of Attorney does not normally allow an attorney to make or change somebody else’s Will. An attorney may have extensive authority to make financial or other legal decisions on behalf of the donor, depending on the type of Power of Attorney in place, but the donor’s Will remains personal to them. This is an important distinction for families to understand.
What If Dad No Longer Has Testamentary Capacity?
If Mr X no longer had the required testamentary capacity, his family could not simply change his Will for him.
In appropriate circumstances, it may be possible to apply to the Court of Protection for what is known as a statutory Will.
The Court of Protection will consider whether making or changing a Will is in the person’s best interests. This is a specialist process and is very different from an individual choosing to make their own Will while they still have capacity.
Legal advice should therefore be obtained before an application is considered.
The Important Lesson for Families
The key lesson from Mr X’s situation is that dementia should never automatically be treated as meaning someone can no longer make their own decisions.
A person who has been diagnosed with dementia may still be able to make or change their Will, provided they have the necessary testamentary capacity at the relevant time.
Equally, where there are genuine concerns about capacity, careful steps should be taken to ensure the person’s wishes are properly understood and the circumstances surrounding the Will are appropriately documented.
How AFG Law Can Help
At AFG Law, our Private Client team understands how sensitive these conversations can be. If a loved one has dementia and wants to make or change their Will, we can advise on the appropriate legal steps and help determine how best to proceed.
We can also advise families on Wills, Power of Attorney, Court of Protection matters and wider later-life planning.
If you or a family member has recently received a dementia diagnosis, seeking legal advice sooner rather than later can help ensure important decisions are made while the individual remains able to express and implement their own wishes.