Hello everyone out there caring for a relative with dementia. I have been there and I know how hard that can be, but my problem is different and for anyone blogging who has some legal knowledge. My father-in-law's partner has now developed dementia, but is an executor and beneficiary in his will. In the will she has the right to decide when his house is sold but is now not able to make that decision herself. She has a power of attorney for her own estate but he is not named in my father-in-law's will. Can he decide on her behalf?Thanks for you help
wills and dementia
- Thread starter Lizzie16
- Start date
It sounds as if your Dad has capacity so on that he just needs to change his will.
I am unsure what you mean about her having power of attorney on her own estate, do you mean it is in her name. Powers of attorney are for the living to manage the financial affairs of another person for when they can't manage them themselves.
Whilst there isn't enough information here to know I sounds to me as if your Dad MIGHT need to be applying to the court of protection for a deputyship.
https://www.gov.uk/court-of-protection
They can your specific circumstances and will help direct you in the right direction.
Others who are far more informed will be along shortly.
I am unsure what you mean about her having power of attorney on her own estate, do you mean it is in her name. Powers of attorney are for the living to manage the financial affairs of another person for when they can't manage them themselves.
Whilst there isn't enough information here to know I sounds to me as if your Dad MIGHT need to be applying to the court of protection for a deputyship.
https://www.gov.uk/court-of-protection
They can your specific circumstances and will help direct you in the right direction.
Others who are far more informed will be along shortly.
AIUI you are saying that the sole executor named in a will lacks capacity, in this case an attorney cannot take on this responsibility.
If the person who made the will cannot, for whatever reason, make a new will the Court of Protection will have to administer the existing will.
If the person who made the will cannot, for whatever reason, make a new will the Court of Protection will have to administer the existing will.
Hi Lizzie and welcome to Talking Point 
.
In some instances an attorney under an Enduring Power of Attorney or Lasting Power of Attorney can act as an executor, in this case on behalf of your father-in-law's partner, but this is a complicated situation and you do need specialised legal advice.
If your father-in-law has capacity to make a new will it might be advisable for him to appoint a different executor.
.In some instances an attorney under an Enduring Power of Attorney or Lasting Power of Attorney can act as an executor, in this case on behalf of your father-in-law's partner, but this is a complicated situation and you do need specialised legal advice.
If your father-in-law has capacity to make a new will it might be advisable for him to appoint a different executor.
I believe depend on whether he has capacity. Dementia is diagnosed at all sorts of stages so diagnosis alone cannot be a bar. But there are members who have legal knowledge who will probably be along to confirm this...or not.
Responding to Platty's query, not the OP.
The relevant term is 'testamentary capacity'. It's best to consult a solicitor in these circumstances. The solicitor may deem the person to have testamentary capacity but will usually arrange for an independent assessment by a psychiatrist. It is also possible that the solicitor may wish to record the discussion with the testator in case there is ever any question about what was said.
Solicitors are bound by Law Society professional codes of conduct to do their best to ensure that everything is done correctly. They risk losing their career if they get it wrong and could face a huge fine or even prison if they are criminally negligent. You can understand why they are very cautious in these circumstances.
Having said all that, the law presumes that an adult has capacity unless there is evidence to the contrary.
It is not 'illegal' for someone to create a new Will. However, the Will could later be challenged if that person has an existing AD diagnosis. It's best to get professional advice.
BTW, the current Will might still be OK. It really depends on what needs to be achieved. If the Will refers to property that the person no longer owns, then this provision will just fail when the Will is executed. If the executors are dead or otherwise cannot act, this can be amended via a legally executed codicil (amendment document). Or new executors can be appointed by the courts when the testator dies.
It is also possible to apply to the Court of Protection for a new Will if this is really necessary due to a change in circumstances of a person who lacks capacity.
Testamentary capacity in my own experience:
When my mum made her last Will, and her POAs, she made some unwise choices. Not about the provisions but about who she chose as Attorneys and Executors (unwise for practical reasons, not because the people themselves were unsuitable). I would say that her early stage dementia affected her judgment. That did not stop her from insisting on what she wanted, despite contrary advice from the solicitor. The solicitor later told me that she had talked to my mother on 3 separate occasions and was satisfied that she was clear about what she wanted.
The documents were finally signed after my mother had spent 4 months in hospital, very ill, and had obvious mental impairment. The solicitor told me that although my mother was by that time quite confused she still stated the same wishes and therefore the solicitor was professionally satisfied that my mother retained testamentary capacity, and capacity to sign her POA documents.
An attempt by a relative a couple of years later to change these documents failed because by that time my mother had been assessed by her psychiatrist as having lost capacity with regard to her financial affairs.
The relevant term is 'testamentary capacity'. It's best to consult a solicitor in these circumstances. The solicitor may deem the person to have testamentary capacity but will usually arrange for an independent assessment by a psychiatrist. It is also possible that the solicitor may wish to record the discussion with the testator in case there is ever any question about what was said.
Solicitors are bound by Law Society professional codes of conduct to do their best to ensure that everything is done correctly. They risk losing their career if they get it wrong and could face a huge fine or even prison if they are criminally negligent. You can understand why they are very cautious in these circumstances.
Having said all that, the law presumes that an adult has capacity unless there is evidence to the contrary.
It is not 'illegal' for someone to create a new Will. However, the Will could later be challenged if that person has an existing AD diagnosis. It's best to get professional advice.
BTW, the current Will might still be OK. It really depends on what needs to be achieved. If the Will refers to property that the person no longer owns, then this provision will just fail when the Will is executed. If the executors are dead or otherwise cannot act, this can be amended via a legally executed codicil (amendment document). Or new executors can be appointed by the courts when the testator dies.
It is also possible to apply to the Court of Protection for a new Will if this is really necessary due to a change in circumstances of a person who lacks capacity.
Testamentary capacity in my own experience:
When my mum made her last Will, and her POAs, she made some unwise choices. Not about the provisions but about who she chose as Attorneys and Executors (unwise for practical reasons, not because the people themselves were unsuitable). I would say that her early stage dementia affected her judgment. That did not stop her from insisting on what she wanted, despite contrary advice from the solicitor. The solicitor later told me that she had talked to my mother on 3 separate occasions and was satisfied that she was clear about what she wanted.
The documents were finally signed after my mother had spent 4 months in hospital, very ill, and had obvious mental impairment. The solicitor told me that although my mother was by that time quite confused she still stated the same wishes and therefore the solicitor was professionally satisfied that my mother retained testamentary capacity, and capacity to sign her POA documents.
An attempt by a relative a couple of years later to change these documents failed because by that time my mother had been assessed by her psychiatrist as having lost capacity with regard to her financial affairs.
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My father-in-law's partner has now developed dementia, but is an executor and beneficiary in his will. No reason why she shouldn't be a beneficiary, not good if she is the only executor. If there is another one named, it shouldn't be a problem- you can be absolved from the duty
In the will she has the right to decide when his house is sold but is now not able to make that decision herself. If Father in law has capacity, perhaps he needs to rethink that. reading between the lines, has he left her the right to live in in for her lifetime, but not to inherit it as such?
She has a power of attorney for her own estate but he is not named in my father-in-law's will. She can have a POA for her affairs , but not for her estate. POA dies with the person. That's when the executor of her estate takes over ( which may or may not be the same person)
Again, reading between the lines ( which may be completely wrong of course!) I'm guessing that you are suggesting that her POA ( Her offspring?) will want to hang onto the property after your fathers death. I think if that's what your fathers will said then yes, I think they would have the right to do that.
I think, if he's willing, i'd get father in law to re visit his will and make things crystal clear, given that she now has dementia
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Hi everyone I hope you are all still smiling through. Can anyone help me with a worry ? My mother in law is in a care home with dementia, my husband has POA for her. Does anybody know what would happen if my husband died before his mothers house was sold ? I'm guessing I would have no authority to act on mother in laws behalf ? Confused and worried
