Myth-busters #7 – Someone with a Dementia diagnosis cannot make a Will or Power of Attorney

In many cases, a diagnosis of Dementia does not prevent someone from making or updating their Will, or putting Lasting Powers of Attorney (LPAs) in place. In fact, in our experience, receiving a diagnosis like this, tends to be the nudge that people need to put their affairs in order.

Whether or not you can make a Will, depends on your level of understanding, known as testamentary capacity. You must be able to understand the nature and effect of the Will, have a reasonable idea of what assets you have, be aware of the people you would usually be expected to provide for and not leave those people out because of any ‘delusion of the mind’. If you meet this test, known as the Banks and Goodfellow test, then you’ll have the necessary testamentary capacity to make a Will.

In the same way, you also need capacity to make Lasting Powers of Attorney.  The test for this is slightly different, but in brief, you will not be able to put LPAs in place if you are unable to make the decision because of an impairment of, or disturbance in the functioning of, your mind or brain. If therefore you are still able to understand the purpose of the LPAs and the authority you are giving to your Attorneys, and no fraud or pressure is being used to make you create the LPAs, then you will be considered to have the required capacity to put them in place. The law about this is in the Mental Capacity Act 2005.

Depending on the case however, it might be advisable to involve a GP or specialist Mental Capacity Assessor when in the process of making a Will or LPA and your solicitor will be able to tell you if this is necessary. For example, where there could be a dispute or questions about the capacity of the person making the Will or LPA later on, involving a medical profession can help avoid problems in the future about the validity of the document. In some cases though, when a medical professional assesses the person, it might be that they say the person doesn’t have capacity. This being the case, your solicitor will be able to advise you about Court of Protection and Statutory Wills. Please visit our factsheet page for further information about this.