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Will advice please

Josdad

New member
Feb 18, 2022
4
0
Hi,
My dad has vascular dementia, he has been in & out of hospital for a year now.During this time I've not been able to see him. He has also been sectioned under section 3 mha.
Eventually last week he was placed in a care home,& I was allowed to see him.
He has previously made a will ,& I am poa for health & finance.
The first thing he wanted to talk to me about was changing his will..
His stepson & myself are beneficiaries.However stepson has gone to USA to live with a woman & adult children whom dad doesn't approve of.
His wish is for me to inherit all of his estate on his death,as I am the only blood family he has.
His capacity to tell me this,was very clear,but I'm unsure how to go about it because of his diagnosis.
Any advice appreciated
Thanks
 

silkiest

Registered User
Feb 9, 2017
673
0
Hi @Josdad, the diagnosis of dementia does not affect his ability to change his will but his capacity does. MIL wanted to make 2 changes and the solicitor saw her alone without other family members present to assess whether she was capable of making these decisions.
 

MartinWL

Registered User
Jun 12, 2020
2,026
0
65
London
As @nitram rightly says it seems improbable that he has capacity to change his will, but it isn't impossible. If he has intervals of greater understanding he might be able to do so. Capacity is decision-specific. It seems to me that this decision isn't all that complicated or difficult to understand. You would in practice need a solicitor to see him and ascertain that he understood all the implications, which might include creating division in the family, and that he could weigh up the pros and cons of the decision. But there are not a lot of things to be considered here, it is just about whether he wants to disinherit his stepson. In contrast to decisions that crop up often, such as a decisions about where to live, this one is a big decision but also simple one. I cannot really think of any complexities that would be hard to understand or that needed to be remembered. One thing that is pretty certain is that you @Josdad should not be involved in explaining things to your dad at all, you have to make it transparent that you have not applied any influence, to avoid any such accusation in the future. Because there is a risk of that I would ask the solicitor to arrange a second independent opinion as to his capacity and make sure everything was thoroughly documented.
 

Sarasa

Volunteer Host
Apr 13, 2018
5,037
0
Nottinghamshire
Hi @Josdad, people with dementia do take against other people for various reasons and if before your diagnosis your father was happy for your step-brother to inherit half his estate then I wonder if changing it even if it was possible is a wise thing to do.
That might be because I think it is important for families to pull together if they can, and your dad changing his will would probably lead to major fallings out with your step-brother.
Is it possible to wait until you next see your dad and see if he is still of the same mind?
 

Jaded'n'faded

Registered User
Jan 23, 2019
3,429
0
High Peak
Your father seems very clear and is able to explain his reasons so it is possible he does have capacity to change his will, if a solictor approves.

However, as @Sarasa has said, I would proceed with caution! My mother decided she wanted to disinherit my brother and leave everything to me at one point. I don't like him and he was an absolute pain over sharing her financial details even though we both held PoA. And he only visited her 3 times in 3 years. However, she also believed several things about him that really weren't true and that contributed to her wanting to change the will.

I decided on her behalf - whether rightly or wrongly - that the exisiting 50/50 split should remain, though I let mum rant on about dear brother because she couldn't be convinced otherwise. It didn't really matter - he was never there.

I do sometimes wonder if the situation had been reversed, with my brother being the main carer, if he would have got her will changed if she wanted to disinherit me!
 

Duggies-girl

Registered User
Sep 6, 2017
3,355
0
My dad talked about changing his will a couple of times, I just reminded him that he and mum had made their wills together and maybe he should respect her wishes too. He agreed with that.

On reflection I should have let him.

Whatever your dad decides @Josdad you must make sure that you are not involved in anyway at all. It must be your dads decision and his only. I am not sure what his next move should be but you must stand back and leave him to it.
 

Josdad

New member
Feb 18, 2022
4
0
Hi @Josdad, people with dementia do take against other people for various reasons and if before your diagnosis your father was happy for your step-brother to inherit half his estate then I wonder if changing it even if it was possible is a wise thing to do.
That might be because I think it is important for families to pull together if they can, and your dad changing his will would probably lead to major fallings out with your step-brother.
Is it possible to wait until you next see your dad and see if he is still of the same mind?
Yes,that's a good idea,I'll see him in a few days& see if he mentions it again.
Btw,there is no love lost on stepbrother,he has abandoned us & doesn't want anything to do with helping dad.He is in his 70's & very wealthy anyway.!
 

Duggies-girl

Registered User
Sep 6, 2017
3,355
0
Your father seems very clear and is able to explain his reasons so it is possible he does have capacity to change his will, if a solictor approves.

However, as @Sarasa has said, I would proceed with caution! My mother decided she wanted to disinherit my brother and leave everything to me at one point. I don't like him and he was an absolute pain over sharing her financial details even though we both held PoA. And he only visited her 3 times in 3 years. However, she also believed several things about him that really weren't true and that contributed to her wanting to change the will.

I decided on her behalf - whether rightly or wrongly - that the exisiting 50/50 split should remain, though I let mum rant on about dear brother because she couldn't be convinced otherwise. It didn't really matter - he was never there.

I do sometimes wonder if the situation had been reversed, with my brother being the main carer, if he would have got her will changed if she wanted to disinherit me!
I am sure that my brother would have jumped at the chance but like you rightly or wrongly I convinced dad to leave things be. Dad eventually forgot about it which I was glad about.
 

nitram

Registered User
Apr 6, 2011
25,499
0
North Manchester
You might be better starting with an assessment by a medical professional, a solicitor is likely to require a statement of capacity from a medic especially if you introduce your dad to the solicitor.

Section 3 is used to detain a person to prevent them harming themselves or others, it does not directly relate to capacity.
Your dad may be on medication that could cloud his judgement.

His GP may be able to make a private referral .
 

Josdad

New member
Feb 18, 2022
4
0
You might be better starting with an assessment by a medical professional, a solicitor is likely to require a statement of capacity from a medic especially if you introduce your dad to the solicitor.

Section 3 is used to detain a person to prevent them harming themselves or others, it does not directly relate to capacity.
Your dad may be on medication that could cloud his judgement.

His GP may be able to make a private referral .
Thanks, the GP is possibly the way to go.
 

cobden 28

Registered User
Dec 15, 2017
133
0
Hi,
My dad has vascular dementia, he has been in & out of hospital for a year now.During this time I've not been able to see him. He has also been sectioned under section 3 mha.
Eventually last week he was placed in a care home,& I was allowed to see him.
He has previously made a will ,& I am poa for health & finance.
The first thing he wanted to talk to me about was changing his will..
His stepson & myself are beneficiaries.However stepson has gone to USA to live with a woman & adult children whom dad doesn't approve of.
His wish is for me to inherit all of his estate on his death,as I am the only blood family he has.
His capacity to tell me this,was very clear,but I'm unsure how to go about it because of his diagnosis.
Any advice appreciated
Thanks
In the early noughties my late Dad was in hospital ater falling off a ladder while pruning an apple tree in his garden, and wanted to change his will. Before he could do so he was examined by a consultant psychiatrist whose diagnosis was that he had 'senile dementia to a marked degree' - those were the exact words used. As such Dad wasn't able to change his will so the will, as it stood, remained without being amended.
 

MartinWL

Registered User
Jun 12, 2020
2,026
0
65
London
Just to remind everyone who has commented, a person with or without dementia is perfectly entitled to make an unwise decision if they have capacity to make that decision. So if a this gentleman has capacity for the specific decision to disinherit the stepson he can do so whether it is wise or not, fair or not, reasonable or not, or downright vindictive! He only has to fully understand what he's doing. @Sarasa should not be wondering if it is a wise thing to do because the wisdom of a decision is irrelevant in law. Given the information provided to us it would seem that he does have rational grounds for the decision (although he doesn't need any) therefore there isn't evidence that he is being irrational because he lacks understanding and therefore capacity.
 

MartinWL

Registered User
Jun 12, 2020
2,026
0
65
London
You might be better starting with an assessment by a medical professional, a solicitor is likely to require a statement of capacity from a medic especially if you introduce your dad to the solicitor.
You may well be right in practical terms but I wonder why so many people are afraid of making decisions about capacity - especially solicitors, since the principle skill and knowledge required in assessing capacity is that of interpretation of the 2005 Act. You would think solicitors would be good at that. There is nothing in the Act that says that in these circumstances a medical person should be involved.
 

Josdad

New member
Feb 18, 2022
4
0
Just to remind everyone who has commented, a person with or without dementia is perfectly entitled to make an unwise decision if they have capacity to make that decision. So if a this gentleman has capacity for the specific decision to disinherit the stepson he can do so whether it is wise or not, fair or not, reasonable or not, or downright vindictive! He only has to fully understand what he's doing. @Sarasa should not be wondering if it is a wise thing to do because the wisdom of a decision is irrelevant in law. Given the information provided to us it would seem that he does have rational grounds for the decision (although he doesn't need any) therefore there isn't evidence that he is being irrational because he lacks understanding and therefore capacity.
Thanks,very wise words.
 

cobden 28

Registered User
Dec 15, 2017
133
0
You may well be right in practical terms but I wonder why so many people are afraid of making decisions about capacity - especially solicitors, since the principle skill and knowledge required in assessing capacity is that of interpretation of the 2005 Act. You would think solicitors would be good at that. There is nothing in the Act that says that in these circumstances a medical person should be involved.
That's what happened with my late Dad; when he was examined by a consultant psychiatrist the result was that Dad didn't have the capacity to be able to change his will.
 

Happy Hampton

Registered User
Feb 22, 2022
96
0
Hi,
My dad has vascular dementia, he has been in & out of hospital for a year now.During this time I've not been able to see him. He has also been sectioned under section 3 mha.
Eventually last week he was placed in a care home,& I was allowed to see him.
He has previously made a will ,& I am poa for health & finance.
The first thing he wanted to talk to me about was changing his will..
His stepson & myself are beneficiaries.However stepson has gone to USA to live with a woman & adult children whom dad doesn't approve of.
His wish is for me to inherit all of his estate on his death,as I am the only blood family he has.
His capacity to tell me this,was very clear,but I'm unsure how to go about it because of his diagnosis.
Any advice appreciated
Thanks
Kind of the same happened with m
That's what happened with my late Dad; when he was examined by a consultant psychiatrist the result was that Dad didn't have the capacity to be able to change his will.
y dad, he was fine when he decided to change his will and exclude my step sisters. They contested the Will and kept his estate tied up for more than 2 years. Oh, I’m in US. Things may be different there but that’s what happened to me.
 

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