How do I know if my relative has the mental capacity to make a will?
Mental capacity requirements to make a will
With debilitating conditions such as dementia and Alzheimer’s on the increase, the question of whether or not a person has mental capacity to make a will frequently arises. Deborah Adams, wills and probate lawyer at Parnalls in Launceston explains the rules.
Assessing mental capacity
Mental capacity, in the context of making a will, broadly relates to whether a person is capable of:
- understanding what making a will means and its effect;
- appreciating the extent of his or her assets; and
- considering potential beneficiaries in a fair and objective way, unaffected by any condition that might affect his or her judgement.
If they cannot do these things, then they may not have sufficient mental capacity to make a will. However, determining this is not always straightforward. Mental capacity, particularly in the earlier stages of a condition such as dementia can fluctuate from day-to-day and the extent of a person’s understanding may not always be clear. It is possible for a person to lack mental capacity to manage their financial affairs, but to have mental capacity to make a will, as the tests that are applied are different.
Can a letter from a doctor help avoid uncertainty?
Where there is uncertainty over a person’s mental capacity or there is any possibility that a question mark might arise over this after their death, it is advisable to obtain a medical certificate of capacity. A GP should be able to provide this or, if in doubt, they will refer the person to a specialist who can do so. A certificate of mental capacity should be sufficient to deal with any challenges to a will on the grounds of lack of mental capacity after a person’s death.
What if my loved one has already lost mental capacity?
If a person has already lost mental capacity, an application to the Court of Protection may be necessary for a statutory will to be prepared on their behalf. This is a will made by the court, in the best interests of your loved one and taking account of:
- their past and present wishes and feelings, and in particular any relevant written statement made by them when they had capacity;
- any previous wills and letters of wishes; and
- any beliefs, values or other considerations that would have been likely to influence what they would have wanted if they had capacity to decide matters for themselves.
The Court of Protection is most likely to approve a statutory will if the person concerned has never made a will before or if there has been a significant change in their circumstances since their last will was prepared.
How can we avoid the question mental capacity becoming a problem?
If you suspect your loved one may be beginning to lose mental capacity, or they are in the early stages of an illness such as dementia, it is important not to delay seeing a lawyer to start the process of making a will. Consideration should also be given to creating a lasting power of attorney giving a friend or relative power to look after your loved one’s affairs when they no longer have mental capacity to do so themselves.
For a confidential discussion about wills and mental capacity issues, please contact Deborah Adams on 01566 772375 or email firstname.lastname@example.org Or Jonathan Pounder email@example.com
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
Been Asked to Sign an Employment Settlement Agreement? Seek Advice Urgently...
Services Update: Continuity of Legal Service Provision
Advising You in Uncertain Times
Could carelessness on social media land you in court?
Is an electronic signature on a commercial property document acceptable?
What happens when there is no health & care LPA in place
Social Media Training for Businesses
Information to gather for your probate solicitor
Gazundering, what it is and how to avoid it
Relief from forfeiture – what happens if the tenant forgets to pay the rent?
Not so safe at work - compensation for an accident at work
New organ donation law: giving you control
Running a business from home
Have nude photos of you or your teenager been posted online?
Landowners’ rights and the Electronic Communications Code
Building in your back garden
Christmas is a time for giving (and inheritance planning)
Buying the freehold of your leasehold house
Redeveloping an empty pub for commercial use
Why it takes time to obtain the Grant of Probate
Social Media: The unconscious privacy threat
Is your reputation being threatened?
Making a will after your spouse or partner has died
Interns celebrate completion of internship at solicitors
Selling your home in a flat market, some top tips
Claiming compensation for a serious road traffic accident
New Media and Communications Court list reflects surge in internet defamation claims by Laura Baglow
Has your personal information been shared without your permission?
Planning your escape to the country, what you need to consider – part 2
Government consultation on new national model for shared ownership
Choosing a partnership structure
Planning for what happens when you die by Deborah Adams
Changes to legislation could offer protection for tenants in the private rental sector
Move to the country - Part One
The risks of DIY probate
Will your septic tank still be legal in January?
The death knell for ‘kiss and tell’?
Making a will when you retire
Selling your property at auction
Not looking so good - your guide to compensation for botched non-surgical cosmetic procedures
New threshold of seriousness in defamation proceedings
Legal considerations when building a granny annex
Choosing the right person for your power of attorney
Formal Interviews - Do you need legal representation?
Privacy rights and aerial images
Trustees’ duty to give information to beneficiaries
Five problems with a leasehold property
Taking your first commercial lease
Is your organisation protected from employee social media legal risk?
Have you been targeted by negative social media posts?
Farmers be alert when being inspected
Help for House Sellers?
Don’t let your digital assets end up in a digital grave
Valuing an estate for probate
Development proposals and your local authority search
What can you do if your child is injured in a serious accident
NetRights welcomes new protection for social media users
SHOULD I GET A LAWYER FOR A SPEEDING OFFENCE?
Supreme Court recognises that social media is a “casual medium” in libel battle
Choosing the best conveyancer who is right for you
Making a will after a second or subsequent marriage
Option or promotion agreement – which is best for landowners?
Anonymous pub and restaurant online reviews leave a bad taste
Have you had an accident involving a horse?
Help to Buy – beware of some cracks in the structure
Understanding Lasting Powers of Attorney
Changes to Energy Performance Certificate for Landlords
Had a cycling accident? Your route to obtaining compensation
New year, new home: tips to sell your home in the New Year
Tax Planning for your inheritance
Hearing loss: when your employer may be liable
Buying a home for your retirement, five things you need to consider
Farmers plan to diversify after Brexit
Ministers press ahead with probate fee shake-up - reports BBC News
Botched dental treatment? You may be entitled to compensation
Why a Health and Welfare Power of Attorney is a good idea
Will the new charge on building developments in Cornwall affect you?
Energy Performance Certificates – Do They Matter?
HMRC Challenging Stamp Duty Land Tax Payments
Ben Mitchell qualifies as a solicitor
The potential implications of Brexit on employment law
Appointing a guardian for your children
Houses in multiple occupation – new rules from October 2018
New Agriculture Bill published
Will Brexit affect my pension?
Dreaming of a holiday home? Sort out the legals before putting your feet up
Lasting Power of Attorney by Deborah Adams
Settled status after Brexit by Alexis Hager
How to choose an executor to administer your estate when you die
How overage agreements can boost profits from your land
Top tips for first-time buyers
How Could Brexit Affect My Farm?
Wills & Succession in Spain by Deborah Adams
Brexit – an international and local view by Alexis Hager, Litigation
Capital gains tax - important facts for non-residents of the UK
Buying a home: the importance of making sure the seller is entitled to sell
Changing a will after someone has died: it is possible and it could save you money
Your responsibilities when you have people working in your home
Sad passing of Battle of Britain pilot who served with Parnall family member
Considerations when buying a heritage property
Disciplinary proceedings at work: guide for employers
Employers should have a disciplinary process in place, but just following this may not be enough to avoid falling foul of the law and exposing yourself to the risk of an employment tribunal claim.