How Dementia and Alzheimer’s Affect the Validity of a Will

As life expectancy increases, more families are affected by dementia-related illnesses, including Alzheimer’s. These conditions can raise complex legal questions, especially when it comes to Wills, inheritance and power of attorney. A common concern is whether a person with dementia can still make or change a Will, and what legal protections are available to ensure their wishes are respected.

Understanding how dementia affects mental capacity is essential for anyone managing a loved one’s affairs or considering legal steps themselves. In this blog, we explore the key issues and answer common questions you may have about how dementia and mental capacity can affect the Will making process.

Mental Capacity and Making a Valid Will

For a Will to be legally valid in the UK, the person making it — known as the testator — must have the mental capacity to understand what they are doing at the time the Will is signed. This legal standard is known as “testamentary capacity”, and it involves:

• Understanding what a Will is and what it does.
  
• Knowing the extent of their property and assets.
  
• Recognising the people who might expect to benefit from their estate.
  
• Making decisions free from undue pressure or influence.

A diagnosis of dementia does not automatically mean a person lacks testamentary capacity. Many individuals in the early or even moderate stages of dementia still retain the ability to make rational decisions about their estate. However, the situation becomes more complex if cognitive decline progresses or fluctuates.

Seeking Legal Support

If a person with dementia wants to create or update their Will, it’s essential to involve a solicitor who is experienced in assessing testamentary capacity. In some cases, a medical assessment or “capacity report” from a doctor is also recommended to help avoid future disputes.

What Happens if Someone Has Dementia and No Power of Attorney?

If someone has been diagnosed with dementia and has not made a Lasting Power of Attorney (LPA), their loved ones may face legal and practical difficulties in managing their finances or healthcare.

A Lasting Power of Attorney is a legal document that allows a trusted person — called an attorney — to make decisions on behalf of someone who can no longer do so themselves. There are two types in the UK:

• Property and Financial Affairs LPA
• Health and Welfare LPA

Without these documents in place, no one automatically has the legal authority to act, not even a spouse or child. In this situation, the family would need to apply to the Court of Protection to become a deputy, which is a more complicated and time-consuming process. This is why it’s so important to set up an LPA as early as possible, ideally before any symptoms of dementia begin to affect decision-making.

Can a Person with Dementia Change Their Power of Attorney?

If someone already has a power of attorney in place but wishes to change who is acting on their behalf, they can revoke or amend the document. However, just like making a Will, they must fully understand the implications of the change. If there is any doubt, a legal or medical capacity assessment should be sought before making changes.

If a person no longer has capacity — for instance, in the later stages of Alzheimer’s — they cannot legally change or revoke their power of attorney. In such cases, the existing attorney(s) must continue to act in their best interests.

Power of Attorney after Dementia Diagnosis

A dementia diagnosis doesn’t mean it’s too late to create an LPA, but timing is key. Many people retain sufficient mental capacity for some time after diagnosis, and this window should be used to get legal affairs in order. The mental capacity test for making a Power of Attorney is different than the one for making a Will.

Creating a Lasting Power of Attorney after diagnosis can:

• Prevent the need for Court of Protection proceedings.
  
• Provide peace of mind to the individual and their family.
  
• Ensure decisions are made by trusted people, in line with personal values and preferences.

It’s important to act quickly and speak with a solicitor who can assess capacity and guide you through the process sensitively.

Protecting a Will from Future Challenges

If you are supporting a loved one with dementia and helping them write or amend a Will, it’s crucial to follow proper legal steps to protect their wishes.

These include:

• Capacity assessment: Ask a medical professional to provide a written report.
  
• Independent legal advice: A solicitor should take clear notes and ensure the will is drafted with care.
  
• Witnesses: Ensure the Will is witnessed correctly, and by people with no personal interest in the outcome.

These precautions can reduce the risk of the Will being challenged later because the person lacked capacity or was unduly influenced.

In Summary

When dementia or Alzheimer’s enters the picture, taking early legal action is the best way to preserve a person’s wishes and protect their estate. Whether it’s writing a Will, changing a Will or arranging a Lasting Power of Attorney after a dementia diagnosis, acting with clarity and sensitivity is key.

At Burt Brill & Cardens, we support families across the UK with these complex decisions. If you’re unsure about Wills or what happens if someone has dementia and no power of attorney, or want to know if a person with dementia can change their power of attorney, our experienced team is here to help.

Contact us today for expert advice on safeguarding your loved one’s rights and wishes. Ring us on 01273 604123, email enquire@bbc-law.co.uk or make an enquiry for confidential advice and support.