Estate Planning For Spouse With Dementia

Estate planning allows you to put down in words what you want to happen after your death. It will be invaluable for those that you leave behind and make things much easier for them when they are sorting out your affairs. This will include letting them know where you have stored your Will so they have easy access to it in due course. Estate planning for someone whose spouse has dementia can be challenging. It is for this reason that having a Will is absolutely vital. In this article, estate planning for a spouse with dementia, we take a look at these issues in more depth and describe the mechanism involved.

Free Initial Telephone Discussion

For a free initial discussion on how we can help you plan your estate and create your Will, get in touch with us today. We are experienced in dealing with estate planning for people whose spouse has dementia and we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure your final wishes are accurately recorded and also avoid the stress of dealing with these issues on your own.  A well-constructed estate plan can provide you with peace of mind and also help those administering your estate. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.

What are the main points to consider?

1. What is Dementia?

Dementia is an umbrella term used to describe a range of progressive neurological disorders, i.e. conditions affecting the brain. There are over 200 subtypes of dementia, but the five most common are: Alzheimer’s disease, vascular dementia, dementia with Lewy bodies, frontotemporal dementia, and mixed dementia. Some people may have a combination of different types of dementia and these are commonly called mixed dementia.

2. How can dementia affect a person?

The symptoms of dementia can include loss of memory, confusion, loss of ability to problem-solve or think clearly. More often than not, dementia progresses over time, with the symptoms getting worse. The consequences of this mean that the dementia sufferer will lose the ability to make important decisions about things such as their finances, their care, or what will happen to their estate after they pass on. If no valid measures are already in place, such as a Will, this can make things complex when the dementia sufferer is deemed to no longer have the mental capacity to sign legal documents themselves.

3. What is mental capacity?

Mental capacity means being able to make your own decisions.

Someone lacking capacity – because of an illness or disability such as a mental health problem, dementia, or a learning disability – cannot do one or more of the following four things:

• Understand information given to them about a particular decision
• Retain that information long enough to be able to make the decision
• Weigh up the information available to make the decision
• Communicate their decision.

4. Estate planning for dementia sufferers

Estate planning for someone with dementia can sometimes be complex, depending on how much the condition has progressed and how capable they are to understand, retain and weigh up information in respect of the various decisions that need to be made.

Whether or not someone who suffers from dementia is able to make decisions about estate planning themselves will depend on whether they are deemed to have mental capacity, according to the principles set out by the Mental Capacity Act 2005.

If an individual with a diagnosis of dementia currently has the mental capacity to make important decisions about their finances, property and other assets, they may still benefit from speaking to a solicitor about the tax or other implications of these decisions.

Depending on the size and complexity of the estate, it may be worthwhile for the individual to take steps for inheritance tax planning purposes. This could apply to someone who owns a business, or simply has their own personal assets that they want to protect for others when they pass on.

A person with dementia, or those acting legally on their behalf and in their best interests, can use opportunities such as their Will, lifetime gifting, or the creation and administration of trusts to help ensure that their wealth and assets are passed to family members or friends.

5. The importance of a Will

If someone has been diagnosed with dementia but has been assessed as still having mental capacity at this time, they can arrange for a Will to be put in place in the same way as anyone else. It is recommended that at the time the Will is put in place, an assessment takes place so that the individual’s mental capacity can’t be questioned later, or the Will is disputed for this reason after they pass on.

If the person with dementia doesn’t have a valid Will in place by the point by which they are deemed to lack mental capacity, when they pass on, their estate will be treated in the same way as any other estate where the deceased didn’t have a Will i.e. under the rules of intestacy. This can sometimes mean that the estate is not divided in the way that the deceased would have wished. Having a Will in place ensures that the individual’s wishes are clear and that any inheritance or assets are directed in the way they want, often to relatives or other loved ones.

If the person with dementia does not have an opportunity to put a Will in place whilst they still have mental capacity, it might be possible for a loved one to make an application to the Court of Protection for a statutory Will.

Is there a recognised standard for writing a will?

In theory, you can write your Will on the back of an envelope. However, as it is a legally binding document it must meet certain criteria. It needs to be witnessed and signed by two independent adults and dated. These witnesses cannot inherit anything from your Will or benefit from your Will in any way (although they can act as executors). Your Will should also name your executors, who are authorised to gather in your assets and divide them up according to your instructions. This process is known as probate. As long as the executor is not a witness, they can be a beneficiary of the Will.

How we can help

We have a proven track record of helping clients plan their estates and draft their Wills. This includes relatively straightforward estates but also complex estates where assets are held all over the world. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.

How to Contact our Wills and Probate Solicitors

It is important for you to be well informed about the issues and possible implications of planning your estate and writing your Will. However, expert legal support is crucial in terms of ensuring your final wishes are met as you would want them to be.

To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.

Authored by Ben Posted in News, Private Client Tagged as