Trainee Court of Protection solicitor, Amelia Clarke, takes a look at the legal matters to review and consider where somebody is suspected to lack mental capacity.
Dementia Action Week is an awareness raising campaign with the aim of breaking down the stigma around diagnosis. At Holmes & Hills Solicitors, we are supporting Dementia Action Week 2025 by raising awareness of the disease and encouraging those living with or supporting those with dementia to seek help when they need it.
Early support can change lives. If you or someone you love are concerned about memory loss or changes in behaviour, getting your legal affairs in order can provide peace of mind too.
In order to make a Will, the testator (person making the Will) must have full testamentary capacity. This is assessed by the solicitor and/or a capacity assessor if appropriate. To make a Will, the person must know what a Will is, understand what assets they have to give away and be aware of people that you would usually be expected to provide for. They should be free of any delusions or mental disorder that could affect their decisions. These requirements were established in the landmark case of Banks v Goodfellow in 1870, which is still considered to be good law today.
If the testator does not have capacity, they can no longer create or amend a previous Will they may have made. It is therefore important to regularly review your Will and ensure that it aligns with your wishes in light of any changes in circumstance.
There are certain people who are able to contest or dispute a Will, and they have multiple grounds for doing so. One ground is the suggestion that the deceased lacked capacity at the time of making or updating their Will.
Our strong relationships with local mental capacity assessors mean that we are able to support you and your loved ones with obtaining a report to ensure that their Will is robust and weaken any potential future claim against the estate on the grounds of incapacity.
Furthermore, our team of inheritance dispute experts at Holmes & Hills have a wealth of experience successfully challenging Wills and representing clients in relation to complex disputes that can in some cases proceed to Court.
People with a condition such as dementia may be unable to make their own decisions. Whilst it is often assumed that trusted family members/friends can make these decisions on their behalf, it is crucial to have legal documents in place, known as Lasting Powers of Attorney (LPA).
Without an LPA, vital decisions may be left to courts, medical professionals or social workers, risking outcomes contrary to personal preferences. A diagnosis of dementia is not a complete bar to making and registering an LPA, the capacity threshold is lower to that of making or updating a Will. However, there must be sufficient understanding of the documents and their contents in order to proceed. We are able to meet with you and advise on whether a capacity assessment by may be necessary.
Seeking legal advice is the best way to ensure that an LPA is effective, legally robust and safe.
If no LPAs have been prepared, and it is established that the person you care for no longer has the capacity to give instruction in regard to their preparation, it will be necessary to apply to the Court of Protection for an application to be appointed as that persons ‘deputy’. Deputies have a lot of responsibility, including submitting annual reports to the Office of the Public Guardian displaying the actions they have taken, and the decisions they have made.
Holmes & Hills’ Court of Protection solicitors are well versed in all proceedings with the Court of Protection. Amelia Clarke is also a dementia friend, so in light of Dementia Awareness Week, Amelia and the rest of Holmes & Hills’ Court of Protection team are committed to offering tailored legal advice to individuals and families affected by dementia, helping them navigate legal processes with sensitivity and care, during Dementia Awareness Week 2025 and beyond.
At Holmes & Hills, an experienced lawyer can assist you in making informed decisions about your future, from Wills to Powers of Attorney and Court of Protection, with compassion and care every step of the way.
Disclaimer
The content of this article is provided for general information only. It does not constitute legal or other professional advice. The information given in this article is correct at the date of publication.
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