Changing will of a person with dementia

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  • getmore4less
    getmore4less Posts: 46,882 Forumite
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    Manxman_in_exile wrote: »
    Apologies if I've missed this, but you say that your mother doesn't have a solicitor (yet) but one of the other posters here has suggested that the solicitor who's written to your mum's psychiatrist is her solicitor. (Tried to quote the relevant posts but can't get it to work today).


    Can you find out who the solicitor is who has written? If you've got a LPA I don't see why the psychiatrist wouldn't tell you. I would then ask the solicitor whom they are acting for. If you've got a LPA for your mum then they should have no objection about informing you if she is the client - or at least that's what I would argue. If they can't tell you who the client is then it may be your brother.


    Two things I don't understand: first, when would your mum ever have the opportunity to instruct a solicitor? Second, if your brother is the solicitor's client what business does he have writing to your mum's psychiatrist (unless possibly connected with the LPA)?


    (PS: just as an aside re the cancelling care business. Before my MiL went into residential care my wife would also cancel her carers if she visited her. But she did make sure she was given meds, fed and bathed etc.)


    That is not how LPA work when the doner still has capacity.
  • Manxman_in_exile
    Manxman_in_exile Posts: 8,380 Forumite
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    Aha!


    Thank you
  • relaxtwotribes
    relaxtwotribes Posts: 369 Forumite
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    I am willing to be shot down in flames by others for suggesting that you have another will prepared identical to the existing will (excluding mention of your father) and once you suspect that your mother has executed a new will presented to her by your brother, then have this new will executed by your mother.
    That puts the situation back to the current position and if your brother seeks to challenge it on the grounds of lack of capacity, then the same lack of capacity applies to both newly executed wills.
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
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    relaxtwotribes wrote: »
    I am willing to be shot down in flames by others for suggesting that you have another will prepared identical to the existing will (excluding mention of your father) and once you suspect that your mother has executed a new will presented to her by your brother, then have this new will executed by your mother.
    That puts the situation back to the current position and if your brother seeks to challenge it on the grounds of lack of capacity, then the same lack of capacity applies to both newly executed wills.
    Sorry but this would be a needless complication and fraught with all sorts of potential problems. The OP should concentrate on coordinating between the solicitor and the clinical staff.
  • GDB2222
    GDB2222 Posts: 24,665 Forumite
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    Yorkshireman99 wrote: »
    Sorry but this would be a needless complication and fraught with all sorts of potential problems. The OP should concentrate on coordinating between the solicitor and the clinical staff.

    Surely, the OP's best bet is trying to coordinate so the clinical staff don't help the solicitor? :)
    No reliance should be placed on the above! Absolutely none, do you hear?
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
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    GDB2222 wrote: »
    Surely, the OP's best bet is trying to coordinate so the clinical staff don't help the solicitor? :)
    The clinical staff have a clear professional requirement to be even handed as has any solicitor. You seem to be suggesting that undue pressure should be applied to the latter. A complete no no. Your signature says it all!
  • GDB2222
    GDB2222 Posts: 24,665 Forumite
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    edited 21 April 2017 at 2:46PM
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    Yorkshireman99 wrote: »
    The clinical staff have a clear professional requirement to be even handed as has any solicitor. You seem to be suggesting that undue pressure should be applied to the latter. A complete no no. Your signature says it all!

    Sigh. You said "The OP should concentrate on coordinating between the solicitor and the clinical staff."

    Since it's not in her interests, I suggested she shouldn't. I don't see any suggestion of undue pressure in my post. You seem to have invented that.

    With due respect, you seem to keep picking fights with me over your misinterpretations of what I have said. This is the second time you have done this in just this one thread. If you disagree with me again, please phrase your objections in polite, non-aggressive terms.
    No reliance should be placed on the above! Absolutely none, do you hear?
  • Malthusian
    Malthusian Posts: 10,938 Forumite
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    relaxtwotribes wrote: »
    I am willing to be shot down in flames by others for suggesting that you have another will prepared identical to the existing will (excluding mention of your father) and once you suspect that your mother has executed a new will presented to her by your brother, then have this new will executed by your mother.
    That puts the situation back to the current position and if your brother seeks to challenge it on the grounds of lack of capacity, then the same lack of capacity applies to both newly executed wills.

    The brother will argue that the mother was having a lucid moment and capable of understanding what she was doing when she signed his version, but then the sister, full of resentment over the fact that the mother had decided to divide her estate more evenly, came in and took advantage of her when she was not having a lucid moment.

    I put it to you m'Lud that no-one would change their minds so rapidly if they were of sound mind, so clearly the sister's Will was executed when the mother was not of sound mind. But no such charge can be laid against her brother, who was simply helping his mother to amend a Will that was long out of date.

    I am not a lawyer, I just play one on TV. I agree with YM, it is a very poor battleground on which to fight.

    Depsite this thread being 3 pages long I'm unclear on whether the mother's doctor actually indicated that he would assess her mother as having capacity to make a new Will. If he won't sign to say the mother has capacity then the OP seems to have little to worry about. If the brother does manage to produce a new Will signed by the mother, this doctor can testify that she didn't have capacity.

    It may be a bad time to play devil's advocate, but I have to point out that if the doctor does believe that the mother is lucid enough at times to make a new Will, then that's her right. Even if the brother applies a lot of emotional pressure to persuade his mother into leaving him half the house, that's not illegal, and there is a very high bar to have the Will ruled as invalid for "undue pressure". However the OP has not said that the doctor is willing to sign to say the mother has capacity, and even if she does have lucid moments, she might well in those lucid moments remember why she didn't give the brother half the house in the first place and tell him to sod off.
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