It is actually quite common for the child or relative of a person with a recent diagnosis of dementia to come to us and ask whether it is ‘too late’ for their loved one to make a will. The answer is, not necessarily.
Although it is widely understood that a person making a will must have the required mental capacity to do so (see below), people often wrongly believe that a diagnosis of dementia automatically means that the person who has been diagnosed does not have the capacity required. This is not always the case.
The mental capacity required to make a will is ‘task specific’ . That is, a person does not have to have mental capacity to carry out all of life’s tasks – i.e. getting married – but they must satisfy certain criteria in order to show they have the required capacity to make a will.
Namely, the proposed testator (the person making the will) must :
It would be important, in these circumstances, to obtain a letter or report from either a treating medical practitioner (i.e. a GP) or an independent social worker to confirm that the test of mental capacity for making a will has been satisfied. Understandably, as dementia is a progressive disease – meaning that the structure, chemistry and function of the brain become increasingly damaged over time – prompt action should be taken in terms of drawing up the will (if medical evidence confirms this can be done) as, sadly, the speed at which the disease progresses varies depending on the individual.
If you have been affected by anything discussed in this article or if you or a relative would like a free, no-obligation discussion about how to proceed under circumstances such as those discussed above, please do not hesitate to get in touch.
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