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My mother has just been diagnosed as being in the very early stages of dementia. Is it too late for her to make a will?

Dementia Action Week- Day 1- the start

Usually people who are in the very early stages of dementia are still able to make a valid will. In Banks v Goodfellow (1870) it was held that a will can be made as long as the will maker knows that they are making a will which will take effect upon death; who their family are and have a broad understanding of what they own. Attitudes towards mental illnesses have changed greatly since 1870, yet Banks v Good fellow is still being upheld as good case law today. Being forgetful, slow, hesitant or any other effects of the ageing process does not mean that you cannot make a will and put your wishes in writing.

For people who do not have a will in place, it is important that they seize the opportunity before it is lost. Once they no longer understand what a will is and who their family are, a valid will cannot be put in place. Whilst an exact knowledge of all your assets is not required, you still need to have a broad outline of what you have to dispose of by will. If your mother does not wish to include all of her children in her will or to provide for them equally, there is the possibility that the disappointed child may challenge the will on the grounds that it was made when your mother no longer had capacity. This risk increases with age, with the size of the estate and also when dementia has been diagnosed. For this reason, it is important that your mother seeks professional advice rather than writing her own will or worse still asking you to do it if you are the only beneficiary. Professional advice is essential to ensure that your mother’s wishes are upheld as far as possible. Whilst it is distressing to discuss why a child is not being treated so favourably as the others, by answering these questions fully this shows that your mother is able to make a will.

What other things should I consider?

For people who are married or live together as partners then both persons need to consider their wills once a diagnosis of dementia has been made. If your father is still alive and your mother and father own their house together as joint tenants if your father passes away first then the house will pass to your mother. If she can no longer live on her own and has to be taken into care then the full property value can be taken in care fees. By meeting with your parents we can discuss with them severing the joint tenancy of the house so that your father’s share would not pass to your mother but instead to the beneficiaries of his will. By doing so, this will protect at least one half of the property value from future care fees. Of course, any arrangements made at the very end can be set aside by the local authority under the deprivation of capital rules so early advice is essential.

How can Cognitive Law help?

At Cognitive Law we make it as easy as possible to set in place a will by seeing people in the comfort and privacy of their own homes where they are surrounded by their own personal belongings. This can be comforting and less daunting than going into a formal office. Appointments can be arranged for a time that best suits your mother; some people are better at making decisions and understanding new information mid morning; for others mid afternoon is best. If necessary appointments can be set up at weekends when you and other family members are not in work and may be available to provide support.

by Michele Henderson