16th September 2024

What to consider from a legal perspective upon receipt of a dementia diagnosis

There are an estimated 982,000 people living with dementia in the UK, with this number anticipated to increase to over 1.4 million by 2040. One in two of us will be affected by dementia in our lifetime, either by caring for someone living with the condition, developing it ourselves, or both. Being in receipt of a formal diagnosis does not render one incapable of managing their legal affairs; each person’s dementia journey is different and consideration should be given at the earliest opportunity to legal matters so as to ensure that matters are appropriately catered for in the future.

 

Create a Lasting Power of Attorney

A Lasting Power of Attorney is a legal document which enables you to appoint persons that you know, trust and feel have the requisite skills and qualities to be able to make certain decisions, both on your behalf and in your best interests, should you find yourself incapable of making these decisions for yourself in the future.

It is a common misconception that such legal authority to make decisions on behalf of an incapable person exists between spouses or next of kin; this is not the case:

“If I have a joint account with my partner and they cannot make decisions themselves, I can legally make the decisions for them”

“If my husband is in hospital and incapable of making a decision for himself as regards his treatment, as his next of kin, I can legally make that decision for him”

Neither of these statements are true; if someone had to pay your bills or make a decision regarding medical treatment, they would struggle to do so without the legal authority afforded by a Lasting Power of Attorney.

There are two types of Lasting Power of Attorney:

  • Property and Financial Affairs – which covers all matters relating to your finances, such as paying bills, claiming benefits/collecting pensions, and selling property. Should it be required – this document, once registered, can be used at any time by your Attorneys if this authorisation has been given, but only under your instruction. They would also be able to act on your behalf, and in your best interests, should you be incapable of making a decision.
  • Health and Welfare – which covers all matters relating to your daily routine, living conditions and medical treatment, including end of life care and life-sustaining treatment. This document can be registered so it is ready to be acted upon by your Attorneys, but is not capable of being used until such time as you were to lose capacity; all the while that you are capable of making your own decisions, you would do so.

Ultimately, you need to consider who you would appoint as your Attorneys – the people you know, and trust would act in your best interests in the future should they be required to do so.  You would also need to consider to what extent you would want them to be able to act for you.

You must have mental capacity to make a Lasting Power of Attorney, so it is important to get these in place early so that they are readily available should a decline in capacity occur. Should you lose capacity in the future without having a Lasting Power of Attorney in place, someone would have to apply to the Court of Protection to obtain authority, by way of a Deputyship Order, to manage your affairs. Obtaining a Deputyship Order is a lengthy and costly exercise, which not only takes the control away from you as to who you would wish to appoint to make these decisions for you, but can also cause frustration for those around you who are met with legal barriers and an inability to make decisions on your behalf at such a time when emotions may already be running high.

 

Create or review your Will

Whilst your Will does not come into effect until such a time as you are no longer with us, it would be pertinent to review your existing provision, or to create a Will should you not have done so already, at the earliest opportunity following receipt of your diagnosis. One must have testamentary capacity to prepare a new Will, which is a legal test set out in statute (Banks v Goodfellow [1870]), namely that you must be able to understand:

  • The purpose of a Will and its effect
  • The extent of your estate which would pass in accordance with your Will
  • Be aware of those who might expect to have been named in your Will and why you wish, or do not wish, to benefit them on your death

It is worthwhile seeking legal advice on the preparation of your Will, particularly if you are in receipt of a dementia diagnosis, so that appropriate measures can be taken to protect the Will from any potential claim that, at the time of making your Will, you lacked the capacity to do so. This may involve engaging the services of a medical practitioner to discuss your intentions behind the Will and for them to act as a witness to your signing of the Will itself.

 

Consider any active trusteeship

As reported in my colleague Ed’s article “Mental incapacity and being a trustee”, mental incapacity can have an effect on the smooth running of any trust for which you may be appointed as trustee. Whilst you retain capacity, it is possible for you to retire as a trustee and, depending on the trust arrangement, appoint a trustee in your place. Careful consideration should be given to the appointment of a new trustee; trustees are required to act unanimously and therefore any differences in opinion that cannot be resolved between them can be both timely and costly.

 

At Buss Murton Law, our Private Client team are understanding of the issues that one may face when diagnosed with dementia. Buss Murton Law are proud to support the Dementia Friends initiative, which aims to increase awareness of the condition and an understanding of how dementia may affect a person. At the time of preparing this article, two thirds of staff across all three offices having attended a Dementia Friends Information Session, with further Sessions scheduled in the coming weeks.

If you would like to discuss creating or updating your Will and Lasting Powers of Attorney, or as regards any potential retirement of trusteeship, please get in touch with our Private Client team:

Cranbrook office – 01580 712 215

East Grinstead office – 01342 328 000

Tunbridge Wells office – 01892 510 222

 

Amy Turner-Ives

Amy Turner-Ives
Trainee Legal Executive