Making a Will with a Dementia Diagnosis

Making a Will with a Dementia Diagnosis

Making a Will with a Dementia Diagnosis
Posted on 1st April, 2020

Being diagnosed with dementia does not necessarily mean that you do not have the capacity to create a new will, create a Lasting Power of Attorney or sign other legal documents. However, where capacity is questioned it is important to speak to a solicitor to get advice for peace of mind and security.

Everyone should keep their will under constant review as their situation changes or if a significant amount of time goes by. A will may need updating due to a change in relationship, a death or an increase or decrease in the size of the estate. If a person has been diagnosed with dementia, it makes it all the more important to ensure that the legal papers are put in place in a timely manner to accurately reflect their current wishes and situation.

The Test for Testamentary Capacity

When you meet with your solicitor to discuss your new will, they will need to establish that you have the required testamentary capacity (the capacity to make a will). Capacity is time and place specific and should be assessed individually and according to your condition on that day and at that time. If you are found to not have capacity on one day this does not stop you from having the required capacity on another day if your condition improves.

The test for testamentary capacity was held in the historic case of Banks v Goodfellow (1870). The case outlined that a person creating a will must demonstrate the following things in order to be found to have testamentary capacity:

  1. They must understand the nature of creating a will and its effects. This means that a person must demonstrate that they know what a will does and must understand that they are giving away their assets and possessions.
  1. They must understand the extent of the assets and property they own and are giving away upon death. A person does not need to be able to recall every single item and asset they own, but they must know generally and have an awareness of what their estate consists of, including anything that they expect to receive in the future or anything which is owed by them.
  1. They must understand the people who would be considered to have an interest in their estate even if the person ultimately decides not to leave anything to those people. These can be people who might have either a moral or legal claim on their estate. The person should also understand their closeness and relationship to the people in order to leave a sufficient and proportionate gift.

If someone with deteriorating mental capacity is leaving someone out of their will it is important to take legal advice on the risks of a successful claim against the estate.

  1. The person must not have a “disorder of the mind or insane delusion” which would result in the distribution of their estate in a way which they would not have done if they had been of sound mind.

This means that the dementia must not be so far advanced that it would affect the wishes of the person making the will.

The level of understanding required with regards to the above test depends on individual factors. For example, the complexity of the will, the complexity and size of the estate and any potential claims on the estate.

The other law relating to the issue of testamentary capacity is the Mental Capacity Act 2005 (MCA). There was uncertainty as to whether the act replaced the capacity test in Banks v Goodfellow above, however the case of Walker v Badmin (2015) confirmed that “the correct and only test” for testamentary capacity is the one outlined in Banks v Goodfellow and therefore the MCA should work alongside but not in substitution of the test.

The main differences between the case law and the MCA 2005 is that the act presumes that a person has capacity unless proven otherwise, and the act also suggests that a person must understand all relevant information rather than merely having an awareness. This means the test under the MCA 2005 is more stringent.

Even if all of the above elements are satisfied this does not stop a will from being disputed later down the line. Your solicitor is likely to request a medical assessment in order to evidence your capacity to make a will at the time you are making it.

Getting a Capacity Assessment

In the case where there are concerns about a person’s capacity, your solicitor may ask for a capacity assessment from either your GP or a capacity expert. Whether this is done by a GP or a Capacity Assessor depends on how much the disease has progressed and the severity of the symptoms presenting.

Time is of the essence with dementia because it is a progressive disease which will eventually deteriorate. If a person is found to not have testamentary capacity, then their assets will either pass under the terms of a previous will or under the rules of intestacy if there is no will in place. A statutory will may be an option: this is when a will is made on behalf of an incapacitated person under the authority of the Court of Protection by someone other than the testator under strict guidance.

If you are making a will or other important legal documents with a dementia diagnosis, it is important that you act swiftly while you still have capacity and that your capacity is evidenced.

We’ve been shortlisted!

We’ve been shortlisted!

Well done to our Private Client team who have been shortlisted in the ‘Team of the Year’ category for the Devon & Somerset Law Society Legal Awards 2020. The Awards ceremony will be held on Thursday, 30th April – we’ll be there, sitting with our fingers crossed under the table! Wish us luck!

A New Year review

A New Year review

A New Year review
Posted on 8th January, 2020

We are now into a new year and although you may have contemplated your New Year’s resolutions, did you give any thought about making or reviewing your will or power of attorney?

At an already difficult time when such documents are required, taking care of these matters beforehand ensures less worry for your family and friends and means you control how your loved ones are protected. Often overlooked is the importance of reviewing a previously signed will or power of attorney.

Without a will, the laws of intestacy dictate the various categories of your family who will benefit from your estate. This means you will have no control over what happens to your assets or the people who will benefit from your estate. This may mean that the people you really want to receive your assets will get less than you intended, or nothing at all.

Without a power of attorney, should you become unable to make your own decisions, a Deputy is required to be appointed by the Court to manage your affairs on your behalf, and this may not be the person you would have chosen. A lasting power of attorney (LPA) lets you appoint the persons (attorneys) whom you wish to manage your financial and health and welfare affairs. Having an LPA avoids the complex, lengthy and expensive Deputy application, the Court’s annual charge to oversee the Deputy’s actions and the need for the Deputy to seek the Court’s permission to deal with certain aspects of your affairs.

A will may need updating where there has been a change in personal circumstances, your beneficiaries or your wishes. Where any law changes have occurred, a review can ensure that your will remains tax efficient.

An enduring power of attorney (EPA) signed before October 2007 remains valid, although you may wish to consider giving your attorneys greater flexibility by updating this to the newer LPA version. Whilst the EPA registration process can take around six weeks and mean a delay in matters at a time when speed may be of the essence, a registered LPA allows your attorneys quick access to manage your affairs. Even if you feel your EPA requires no updating, you may wish to consider a Health and Welfare LPA as an EPA only covers your financial affairs.

When reviewing an LPA / EPA, consideration should be given to whether your appointed attorneys remain able to act for you and that any included restrictions remain relevant.

Following a review, no action may be required but at least this ensures your wishes continue to be up-to-date and correctly reflected based on your current circumstances.

If you are considering making or reviewing your will or power of attorney, please contact one of our offices.

 

Rent charges: to be avoided?

Rent charges: to be avoided?

Rent charges: to be avoided?
Posted on 21st November, 2019

Historic rent charges are yearly payments made by homeowners to whoever owns the rent charge (rent charge owner), and date mainly from the end of the nineteenth century and the early twentieth century. The rent charge owner does not usually have any interest in the property other than a right to receive this sum each year. In today’s terms, historic rent charges are generally for nominal sums, say a few pounds a year. Despite the small sums due, payment of these should always be made promptly and it is worth seeing if these can be redeemed by the payment of a single lump sum.

In the 1970s, legislation was passed preventing the creation of any more of these historic rent charges, with a few exceptions – one of which was estate rent charges.

It is becoming increasingly common for a developer to set up a management company on new developments. These companies manage common areas and facilities, such as playgrounds, drainage, amenity land, car parks and private accesses, including their insurance, cultivation, maintenance, repair and lighting. Each freeholder is responsible for a proportion of these estate charges. By applying an estate charge to freeholders, the developers or estate managers can ensure the recovery of costs accrued from providing services and maintenance.

Whilst leasehold owners have significant statutory protection in relation to service charges payable under a lease, freeholders do not share the same rights and protection. Freehold owners should therefore be aware that they have very limited protection and few options to investigate or challenge any charges demanded from them. There is no implied test of reasonableness for estate charges, and any dispute or challenge must be made by bringing court proceedings.

Freeholders also have no right to receive accounts or to be provided with information relating to the charges claimed, unless express provision is included in the title to the property.

Both historic rent charges and estate rent charges have the same enforcement remedies. If rent is unpaid for 40 days, the rent owner’s options for enforcement of the debt may include rights to repossess the property or to grant a lease of the property to trustees. The trustees will then try to use that lease to raise enough money to settle the unpaid rent. A case in 2016 (Roberts v Lawton) confirmed that once a lease had been created it would continue even if the arrears had been paid off and the rent charge terminated, unless the rent charge owner agrees voluntarily to remove it. Such enforcement remedies are very heavy handed.

There is no obligation on the rent owner to serve notice demanding the over-due estate charges before pursuing these draconian remedies. These penalties create a great risk to homeowners and any lenders whose charge is secured on the property. The Government has promised reform but, for the time being, if you are contemplating buying a property subject to historic rent charges, check if these have been paid up to date and look at the possibility of redeeming the charge. Historic rent charges are common in Bath and Bristol.

With regard to estate rent charges, you should make sure the rent is paid on time so as to avoid any of these penalties. Also, try to ensure that even if the property is subject to such a yearly payment, the various statutory remedies are stated not to apply or are watered down so as to mitigate the enforcement risks.

 

Cohabitation

Cohabitation

Cohabitation
Posted on 13th September, 2019

It is suggested in this morning’s newspapers that marriage for women is at a record low.

What then happens in a relationship breakdown?

It is widely recognised that upon relationship breakdown unmarried couples do not have the same rights as married couples.

The law relating to property disputes between unmarried couples centres on the parties’ intentions. It does not give the court the ability to take account of the parties needs or contribution. If intentions are not clearly recorded in a declaration of trust or cohabitation agreement then there is no scope for argument.

A cohabitation agreement can help couples agree how they will manage their household and other finances and living arrangements during their relationship as well as in the event that it comes to an end.

Setting clear expectations from the start has to be the best way to avoid a costly battle in the future.

If marriage is not for you then consideration of a cohabitation agreement is vital if financial interests are to be protected.

If you need further advice, please contact Kris Seed who is the Head of Family department on Exeter 01392 848951.