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  • FIRST POST
    • DesperateScousewife
    • By DesperateScousewife 14th Apr 17, 6:36 PM
    • 493Posts
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    DesperateScousewife
    Changing will of a person with dementia
    • #1
    • 14th Apr 17, 6:36 PM
    Changing will of a person with dementia 14th Apr 17 at 6:36 PM
    My brother and I have power of attorney for my mother who is 86 and has Vascular Dementia.
    Her Psychiatrists secretary rang me last week and told me the Dr had received a letter from a solicitor with a letter attached from my mother giving her permission for the Dr to assess her to sign her will.

    My mother and father (died 2015) made mirror image wills in 1999.
    My solicitor has told me that the will cannot be changed unless my mother wasn't of sound mind when she made it or there is a mistake on it, which there isn't.

    Brothers miffed because their house goes to me, any cash left is divided between us. I have looked after mum and dad all my life. He moved away over 30 odd years ago and would only visit once, maybe twice at year at most. Mum has never been business minded and myself and the family doubt she has mentioned changing her will.

    Any advice please? TIA
    Last edited by DesperateScousewife; 14-04-2017 at 6:50 PM.
Page 3
    • Manxman in exile
    • By Manxman in exile 20th Apr 17, 3:57 PM
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    Manxman in exile
    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.)
    Last edited by Manxman in exile; 20-04-2017 at 4:02 PM. Reason: Addition
    • getmore4less
    • By getmore4less 20th Apr 17, 4:32 PM
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    getmore4less
    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.)
    Originally posted by Manxman in exile

    That is not how LPA work when the doner still has capacity.
    • Manxman in exile
    • By Manxman in exile 20th Apr 17, 5:05 PM
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    Manxman in exile
    Aha!


    Thank you
    • relaxtwotribes
    • By relaxtwotribes 21st Apr 17, 10:36 AM
    • 237 Posts
    • 109 Thanks
    relaxtwotribes
    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
    • By Yorkshireman99 21st Apr 17, 11:19 AM
    • 2,807 Posts
    • 2,217 Thanks
    Yorkshireman99
    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.
    Originally posted by relaxtwotribes
    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
    • By GDB2222 21st Apr 17, 11:48 AM
    • 13,903 Posts
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    GDB2222
    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.
    Originally posted by Yorkshireman99
    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
    • By Yorkshireman99 21st Apr 17, 12:34 PM
    • 2,807 Posts
    • 2,217 Thanks
    Yorkshireman99
    Surely, the OP's best bet is trying to coordinate so the clinical staff don't help the solicitor?
    Originally posted by GDB2222
    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
    • By GDB2222 21st Apr 17, 2:41 PM
    • 13,903 Posts
    • 74,500 Thanks
    GDB2222
    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!
    Originally posted by Yorkshireman99
    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.
    Last edited by GDB2222; 21-04-2017 at 2:46 PM.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • Malthusian
    • By Malthusian 21st Apr 17, 3:28 PM
    • 2,627 Posts
    • 3,744 Thanks
    Malthusian
    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.
    Originally posted by relaxtwotribes
    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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