Will and LPA for Uncle with mental health problems. (And DIY'ing LPA instead of using a solicitor?) 6 September 2022 at 8:13PM edited 15 September 2022 at 2:16PM in Marriage, relationships & families 10 replies 365 views

Tunstallstoven

Hi

My uncle has asked for my help in finding how best to go about making a Will and organising a LPoA .  He has mental health issues and I wasn't sure whether this adds complications to the Will?  Does it have to be verified somehow that he was in a clear state of mind at the time of writing it?  

I was wondering if anyone has any general tips please?   And also whether there are specialist solicitors or services for people in this situation?  

Many thanks

macman

He needs to have mental capacity both to make a will and to create an LPA. 
The solicitor would be the person to decide if he is capable of doing that initially. 
'Mental health issues' covers a broad range and does not mean he necessarily lacks capacity.

Keep_pedalling

The important thing is that he has the mental capacity to make the will. Somebody with advanced dementia obviously couldn’t but there is no reason why other conditions such as manic depression should be a bat to making a will. He really should make an appointment with a local solicitor to get moving with the will.

Tunstallstoven

Many thanks for the replies.  

Yes, he does have mental capacity so there are no issues there.  I just wasn't sure whether the will would need some kind of extra element or some kind of acknowledgement that he was well and in sound mind when it was written.  And if so, whether there are any specialist solicitors for that, or anything else that has to be done.

But if it's just a case of finding a solicitor and getting the will done (and LPoA) then that's great and I'll get cracking on check out a few in his local area.  

Thanks again

elsien

Does he have any active involvement from mental health services at the moment? If yes then maybe he could discuss it with them and they could flag up any concerns if they did have any.

Tunstallstoven

Thanks, that's a good thought.  He does indeed have active and ongoing involvement with mental health services.  Unfortunatle though, I did speak to his care co-ordinator about all this a while back but she had nothing to offer beyond giving me the number for Age Concern (as they might know of good solicitors). 

elsien

There’s a preumption of capacity unless proven otherwise. So if the care coordinator didn’t flag up any concerns when you asked then just visiting a solicitor and getting on with it seems like a reasonably safe bet. 

TBagpuss

as above, there is a presumption that someone has capacity and a solicitor will generally raise it if they think it may be an issue . I would suggest that your uncle lets the solicitor know the nature of the mential health issues he has and that will help thwemn to judge whether capcity is likely to be raised.

If they have any dounts, or if they or your uncle think there is a risk that it might be rasied (most likely if he has anyfamily members who are likely to be unhappy with his choices) then it's possible to arrange for a medical assesment - dependng on the nature of the health issues this might simply be a letter from your uncle's GP, or might mean having a suitable medical professional attend when he revies and signs the will who can give a certificate to say they were satisfied he had the necessary capacity on that date. This is quite unusual but might be appropriate where someone's capacity fluctuates. 

A solicitor may well ask your uncle questions, when he provides instructiosn for the will - for instance, they may ask him about family members, ask him to repeat his instructions more than once or to repeat back whet he understands they've been discussing - all of which are ways of checking for issues such as short trem memory loss, confusion etc which might indicate he did not have capacity.

If you are supporting him they would usually also ask you to leave so they can talk to him in private, as they will want to be confident both that he understands and so they can be confident that he's able to state his wishes and isn't being put under any pressure.(and of course so if anyone were to later challenge the will, they are able to say that they spoke to him alone and that he gave / confirmed the instructions). 

That wouldn't prevent you helping him if necessary - for isntance by letting the solicitor know what uncle has told you he wants, and if your uncle wanted you to be present to explain things initially he can say so, but don't be surprised if you are then asked to leave him alone with the solicitor so they can talk to him in private as well. They are likely to do this even if you aren't a beneficiary.

Tunstallstoven

Thanks for that - very helpful  

Tunstallstoven

Just returning to this after having got a few quotes.  

I think for a variety of reasons it would be best for the will to be done with a solicitor.  

But for the LPA I'm thinking to DIY with my uncle.  I seem to remember being involved with my parent's LPAs when they set them up.  And likewise my wife with her parents.  So it's not a wholly new area.  We've both done probate ourselves when parents have died, and from memory the forms for setting up an LPA are more straightforward. 

In terms of quotes for the two LPAs (not the will), so far I've had £480 and £840.  In both cases that's not including the £164 fee to register them.  

I am in touch with my uncle's care co-ordinator.  Whilst not wanting to be directly involved in any of this, she might at least be able to confirm he has capacity at the moment, or signpost us to whoever can and should be doing that.  

But before I press ahead, does anyone think I'd be made or stupid to DIY it, for whatever reason?  

Many thanks

elsien

Only if you think someone is likely to challenge it. And if you make sure he does it when he’s at his best  get someone who understands capacity and is happy to confirm they’ve properly discussed it with him then there shouldn’t be a problem. 

Is your uncle on benefits, if so his fee may be reduced or waived. The gov.uk website should give you the relevant information. Ask him also to think about if he wants to give someone permission to act for him while he still has capacity, for finances. Can be handy if he’s in hospital - I’ve known the patient phone to be down for weeks which alongside poor mobile signals can make life very difficult.