How do you know if a will was made

Yorkshireman99

securityguy wrote: »

Because "competence" depends on the situation.

To actually carry out duties as an administrator requires different cognitive abilities to giving power of attorney. For the latter, it is sufficient that a suitably qualified person will attest that they were capable of understand the implications at the time, and if they couldn't remember a day later, it didn't matter. An informal judgement by the family that someone wasn't capable of acting as an administrator doesn't overturn that. If you can get appropriate people to agree to competence at the time of signature, that's pretty much the end of it. Early, or indeed relatively advanced, dementia may not be a bar to that, depending on the precise nature of the cognitive decline. It's not uncommon for people to be capable of relatively sophisticated intellectual debate, but not remember it an hour later: that would be fine for signing an LPOA, but probably make acting as an administrator [STRIKE]perfectly OK[/STRIKE] (edit to correct to:) very difficult.

A relative of mine did both financial and health and welfare POAs after a formal diagnosis of dementia, in a fairly rapidly advancing and already advanced form. The people that signed off her competence for the POA were suitably qualified professionals, and the POA was accepted for all the purposes one might to use it once she completely lost capacity.

Administrating an estate needs ongoing capacity and as the OP stated that the person would not be capable of dealing with the oath let alone doing the administration. Hence they clearly don't have capacity to do so. Furthermore any competent professional would not certify them capable of understanding the implications of signing a POA. Just because you have one, frankly rather dubious, example of professionals certifying does not mean it gives carte Blanche to others.

securityguy

If you join a dementia carer support group and ask around, you'll find POAs being signed post-diagnosis is pretty common.

The Alzheimer's Association has guidance here.

https://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=354

The presumption is that adults are capable unless proven otherwise. A diagnosis of dementia is not proof of incapacity.

Keep_pedalling

Yorkshireman99 wrote: »

If she is incapable of applying for probate then how can she be competent to give POA?

I think that would really be a decision for someone like the lady's GP to make a call on. My comment was really based on the statement that she was in the early stages of dementia, where it should be perfectly possible to do a LPA. My mother in the early stages of dementia, was perfectly capable of understanding the importance of doing one and she had it certified by naighbour who happened to be a medical doctor who also knew her well. At the same time if she had to have any dealings with a stranger over anything official she would get hopelessly flustered and could not handle the situation.

If that is not the case then it sounds like the dementia is more advanced.

Yorkshireman99

The OP stated that their MIL would not even be able to deal with swearing the oath. In that case it would be impossible for her to deal with any of the administration of the estate or to understand what signing the application form meant. Assuming that is the case she would not be capable of understanding an LPOA form and the consequences of signing it. The forms are not easy to understand even by those who are fully compus mentis. I am well aware that there is much anecdotal evidence of LPOA's being obtained under what may well be questionable circumstances but that does not mean that it is legal. All the more reason to publicize the importance of putting an LPOA in place.

Tuesday_Tenor

pothole50 wrote: »

The solicitor said nothing about my wife not being able to apply for the letter of administration, we just assumed from what we had read on the Internet and this forum, that the next of kin was his wife, and she had to apply for it. It would make life so much easier if we could sort it out for her and get his money transferred over to her account, but the last thing we want to do is break the law, we have enough stress trying to sort mum and the funeral out.

The solicitor has not helped you as much as he/she could have done. He/She should have explained the situation better.

As Security Guy says, while the deceased's wife has the most right to apply for Letters of Administration, if she does not want to/cannot do it, then his children are next in order of precedence to do so.

On the gov.uk website this is only stated explicitly when you get as far as reading the guidance notes PA2 for filling in the Probate Application form PA1: https://formfinder.hmctsformfinder.justice.gov.uk/pa2-eng.pdf