Advice regarding will creation where one partner suffers with dementia

sheffieldeagle

Hi

Just wondering if anyone can offer some advice regarding will creation. My parents have an appointment with a solicitor but just wondered where they might stand before they go in to discuss. Unfortunately my mom suffers with alzheimers although she is still relatively well at the moment (still looks after herself, cooks and cleans etc but short-term memory is getting worse). Any thoughts or advice would be most welcome.

Thanks

mrschaucer

I think it's going to be up to the solicitor to decide whether or not she is of "sound mind" with regards to writing her will.  He will probably wish to talk to her on her own.

theoretica

Have you notified the solicitor of the situation so they can prepare for it?

Clueless56

What Theoretica has posted is vital.  The solicitor will need to establish how much Mum understands and can retain about the issues discussed for the Will.  Mental capacity is not binary - you don't either have it or not - and each decision must be taken and considered separately.  It will help the solicitor to know that they need to be considering the Alzheimer's, so they can fully check that Mum's wishes are followed and to what extent she has capacity to make those decisions.

Keep_pedalling

The other issue is lasting powers of attorney. If they are not in place but you mother still has sufficient mental capacity to make that should be done as a matter of urgency.

sheffieldeagle

Thanks everyone for your thoughts it's much appreciated. The solicitor is aware of mom's condition but I did wonder if her doctor's opinion may be sort by the solicitor to protect her interests. We will hopefully be putting power of attorney in place soon also. To be honest I would have preferred to have all this in place already but it's been very difficult to get my dad to move on both these important steps.

Brie

Personally I would think a crucial thing is what the will contains. 

If your mom's will is a mirror to your dad's that is normal and straightforward and I don't think any one would question it unless their circumstances are highly unique.  If, on the other hand, your mom's will states that everything should be given to her husband's children by a previous marriage and nothing to her own children then a solicitor should question that whether mom has dementia or not.  

Beyond that - if the solicitor has been doing things for them over the years like house purchases or knows them either vaguely socially there will be a good understanding of what is normal for her.

fyi - we're in much the same position with MiL and getting PoAs in place.  But I've got a cunning plan which involves her hair guy to be witness on the forms.  He's known her for years, is a practical individual and will be perfectly willing to say no to us if he thought it was wrong for her.    

sheffieldeagle

I'm assuming a 'mirror will' is what the solicitor will suggest as they have an uncomplicated set of circumstances apart from mom's condition.

Keep_pedalling

sheffieldeagle said:

I'm assuming a 'mirror will' is what the solicitor will suggest as they have an uncomplicated set of circumstances apart from mom's condition.

Under the circumstances mirror wills are probably not the most appropriate. Your father’s will should take into account the likelihood that your mother is likely to require residential care especially if he were to diy first. He may wish to pass the bulk of his estate to his children rather than her.

TBagpuss

sheffieldeagle said:

Thanks everyone for your thoughts it's much appreciated. The solicitor is aware of mom's condition but I did wonder if her doctor's opinion may be sort by the solicitor to protect her interests. We will hopefully be putting power of attorney in place soon also. To be honest I would have preferred to have all this in place already but it's been very difficult to get my dad to move on both these important steps.

How it works is that the solicitor has to decide whether they are satisfied that she has the mental capacity to be able to make a will (or grant PoA) this  includes considering whether she is able to understand the nature  and effect of a will and of the specific terms of hers.

While the solicitor can make that decision, they may well want to involve a doctor - not primarily to cover their back but to ensure that your Mum's wishes are respected, in the event that there was any challenge to her will. 

Capacity is very specific - a person may have capacity for one thing but not another (for instance, someone might have the capacity to be able to consent or refuse medical treatment but not to make a will or POA, or vice versa, depending in the nature of their illness. Capacity can also fluctuate - it's with considering whether you mum is typically better at some times of day than others, or whether she is better in familiar surroundings or worse if she is tired from travel, in which cases asking for a home visit rather than going to the solicitors office may be worth considering .

It's definitely important to tell the solicitor ahead of time,  they will then be able to form their own view but just as importantly, to make notes that they were made aware and that in their view she did have the required capacity.

You may also want to prepare your mum - let her know that the solicitor may ask her a lot of questions or ask her the same thing more than once (as they may need to make sure that she can remember what she has told them and is consistent ) They may also ask to speak to her on her own (which is fairly normal to make sure that there is no pressure or undue influence even when making mirror wills) 

sheffieldeagle

TBagpuss said:

sheffieldeagle said:

Thanks everyone for your thoughts it's much appreciated. The solicitor is aware of mom's condition but I did wonder if her doctor's opinion may be sort by the solicitor to protect her interests. We will hopefully be putting power of attorney in place soon also. To be honest I would have preferred to have all this in place already but it's been very difficult to get my dad to move on both these important steps.

How it works is that the solicitor has to decide whether they are satisfied that she has the mental capacity to be able to make a will (or grant PoA) this  includes considering whether she is able to understand the nature  and effect of a will and of the specific terms of hers.

While the solicitor can make that decision, they may well want to involve a doctor - not primarily to cover their back but to ensure that your Mum's wishes are respected, in the event that there was any challenge to her will. 

Capacity is very specific - a person may have capacity for one thing but not another (for instance, someone might have the capacity to be able to consent or refuse medical treatment but not to make a will or POA, or vice versa, depending in the nature of their illness. Capacity can also fluctuate - it's with considering whether you mum is typically better at some times of day than others, or whether she is better in familiar surroundings or worse if she is tired from travel, in which cases asking for a home visit rather than going to the solicitors office may be worth considering .

It's definitely important to tell the solicitor ahead of time,  they will then be able to form their own view but just as importantly, to make notes that they were made aware and that in their view she did have the required capacity.

You may also want to prepare your mum - let her know that the solicitor may ask her a lot of questions or ask her the same thing more than once (as they may need to make sure that she can remember what she has told them and is consistent ) They may also ask to speak to her on her own (which is fairly normal to make sure that there is no pressure or undue influence even when making mirror wills) 

That's really useful information.

Much appreciated.

The more I think about it the more questions come to mind. We will have to see what the solictor says and go from there i think.

Thanks again everyone.