The 14th – 20th May is Dementia Awareness week and, with this in mind, we thought we would have a brief look at how you can attempt to mitigate the effects of this devastating disease with a well thought out and proactive approach to your estate planning.
According to the Alzheimer’s Society, dementia is set to be the biggest killer of the 21st century, highlighting the scale of the issue that we – as an aging society – face in the coming years. In this regard, it is important that you are aware of the measures you can take to help provide yourself and your family with the ways and means to manage the practical implications of living with the disease.
Whilst the disease is more prevalent amongst the over 65’s, the risk of early onset dementia should not be discounted with over 42,000 people under the age of 65 already living with dementia. In this respect, it is important to consider your estate planning needs as early as is possible and ensure your legal affairs are in order. There are a number of services that The Will Writing Company can offer that will assist you in ensuring that you are forearmed should you be diagnosed with dementia or Alzheimer’s disease in the future.
Firstly, we can prepare a Lasting Power of Attorney which will allow someone you trust to manage your affairs should you be unable to do so in the future. There are two variants of the Lasting Power of Attorney, one which allows your attorneys to deal with your property and affairs and one which allows your attorneys to attend to your health and welfare needs. Here at The Will Writing Company we are able to prepare both of these documents for you as well as arranging their registration at The Office of Public Guardian (OPG). You can give guidance as to how you wish your attorneys to act which allows you to maintain a degree of control of your care and affairs even at such a time as you no longer have the capacity to do so yourself.
If you do not establish a Lasting Power of Attorney, then your family may be left with little option other than to apply to the Court of Protection seeking to become a court appointed deputy. This can be an expensive and time consuming process and annual supervision fees apply in addition to the initial application costs. Hearing costs may also apply should the situation be more complex.
In addition to preparing Lasting Powers of Attorney, we can also prepare a Will for you which will allow you to know with certainty where your assets will pass when you have passed away. In addition, it is possible to take certain steps within your Will which will help ensure that should your partner suffer from dementia, your share of your combined assets do not pass to your partner after you have died and risk being subsequently lost should they require long term residential care. A degree of protection in this regard can be achieved by utilising trusts within your Wills and our fully trained Estate Planning Consultants will be able to discuss the full range of options available to you in this regard. This will include trusts that provide your partner with a right to reside in any property for as long as they wish or are able to do so as well as trusts which provide them with a right to income from trust assets. Again, it is important that care and attention is given to your wishes in this regard and you receive the right advice as to the benefits and detriments of any potential courses of action.
In some particular circumstances lifetime trusts may be suitable, however these must not be used to attempt to divest onself of assets for the purposes of avoiding care fees.
It should be noted that a diagnosis of dementia does not necessarily preclude your ability to instruct someone to prepare a Will or Lasting Power of Attorney. Given the disease is progressive – it is vitally important that an early diagnosis is obtained and you speak to estate planning specialists as soon as is possible. We will be able to assist in assessing your capacity using both the common law tests (Banks v Goodfellow*) and tests prescribed in statue (Mental Capacity Act 2005). Under The Mental Capacity Act 2005, there is a general presumption of capacity unless it is established that someone lacks capacity, but by using professional advisers you will ensure that the issue is fully considered and documented, helping to safeguard your decisions.
The Mental Capacity Act 2005 states in section 3(1) that someone is unable to make a decision if he or she is unable:
1. to understand the information relevant to the decision,
2. to retain that information,
3. to use or weigh that information as part of the process of making the decision, or
4. to communicate his or her decision (whether by talking, using sign language or any other means).
Should our Estate Planning Consultant have any doubts as to whether you, or a loved one, meet the capacity requirements detailed in the common law or under the Mental Capacity Act 2005, we are also able to liaise with specialist medical practitioners. Such medical specialists will then provide us with a detailed report confirming whether you or a loved one have the requisite capacity to instruct us to prepare a documents on your – or their – behalf. This not only ensures that we are acting properly but will help ensure your wishes and interests are fully protected in the future should anyone seek to challenge a proposed course of action or the manner in which an estate is to be distributed.
What to do next:
We at The Will Writing Company understand that whilst it may be difficult to think about the future, it can also be reassuring to know that you have made your wishes clear and done as much as is possible to make your family’s lives easier should certain situations arise in the future. Please contact us or call 03455 20 30 40 for a no obligation meeting to discuss your estate planning needs.
Author; James Unsworth, Paralegal
*Banks v Goodfellow (1870) LR 5 QB 549