Advanced Dementia: It Might Not Be Too Late To Make A Will

Year Published: 2017

You may be surprised to learn that it is possible for someone with advanced dementia, severe debilitating mental health needs, or even a person in a coma to have a Will made for them. This can be done through a Statutory Will, which is a Will made on behalf of someone who has lost mental capacity and authorised by the Court of Protection before it becomes legally enforceable.

Genevieve Powrie, Elderly, Care & Mental Capacity Soliciotr at SAS Daniels

Genevieve Powrie, Solicitor

The Court of Protection oversees decisions for people who are medically certified as lacking the ability to make certain decisions for themselves. This court deals with a variety of decision making on behalf of these patients. From end-of-life decisions, such as the withdrawal of life-sustaining treatment, to the appointment of financial Deputies who will take care of the property and financial affairs of the patient. One area of their jurisdiction is authorising Statutory Wills. If the court believes that it is in the best interests of the patient to have a new Will, then they will grant permission for a Will to be made.

What circumstances would justify making a Statutory Will?

Here are some examples of when a Statutory Will could be authorised:

  1. If there is no Will and the patient does not want their estate to pass under the intestacy rules on death, and there is good evidence of what the patient’s current or past wishes and feelings are;
  1. If there is an existing Will but that Will is out of date and does not reflect the more recent wishes and feelings of the patient, which are consistent and strongly held;
  1. If there has been a significant change in family circumstances, such as the patient has got married since last making a Will (marriage automatically revokes a Will) or has been a victim of financial abuse by someone who stands to inherit their estate;
  1. If there is a significant change in financial circumstances, such as the patient receiving a large inheritance or a lottery win, which distorts the intentions of the previous Will or causes tax issues;
  1. If there is a flaw in an earlier Will, causing it to be invalid or noticeably unfair. For example, it is not uncommon (although inadvisable) for people to leave a specific item, e.g. a diamond ring or a house, in their Will to one person and then the remainder of the estate which is of equal value to the ring/house to another person. If the Will has not been drafted carefully, and the ring or house has already been sold when the patient dies, the first person would receive nothing.

There may be other examples of when the court would authorise a Statutory Will. If you are in any doubt, take legal advice to help you to decide whether an application would be in the patient’s best interests. These applications can become very expensive, especially if not everyone agrees with the proposals so it’s key to make sure that the application is likely to be accepted by the court. It is also advisible to ensure full and accurate evidence is available at the outset and that the cost justifies the benefit.

How can a Statutory Will be created?

When making a Statutory Will application it is necessary to notify everyone who has a close relationship with the patient and involve anyone who has a material interest in the outcome of the application. Ideally, everyone will agree on the terms of the proposed Will with the help and mediation of the “official Solicitor” (who is appointed to represent the patient). The court will order that the Will be made in the terms agreed and the applicant will prepare a draft Will and sign it. Following this the court will rubber stamp the Will with a court seal.

Who pays for the application?

The court has the power to direct that the applicant, or any other party, pays the cost of the application if they have behaved unreasonably. Otherwise, the costs of all parties involved (including the “official Solicitor” who is appointed to represent the patient themselves) will come out of the patient’s estate.

For more information on Statutory Wills or any other problem relating to mental capacity, please contact Genevieve Powrie on 01625 442146.

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