mental capacity

Should There Be A Mental Capacity Test When Writing A Will?

The rules that revolve around writing a will came into force – in the main – during the Victorian era when will writing became more regulated and had a legal status. However, a review by the Law Commission has concluded that these rules are behind the times, and many of them need to be updated to comply with modern living. The worry is that because these rules don’t seem to match up to how we live today, they could be one of the reasons why many people don’t write a will in the first place.

When you write a will, you must follow specific procedures in order for it to be seen as valid. If the rules that have been put in place are not followed, then your will may not be enforced, even if you have made your final wishes clear.

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One of the main issues that the Law Commission found in the old rules around wills was the matter of mental capacity. When the term was created, it didn’t take into account illnesses such as dementia, which is changeable, giving the sufferer good days and bad days. Someone with early onset dementia, for example, may have problems with short term memory, but that does not mean that they do not fully understand what they want to do regarding their will. The law as it stands, however, prevents them from writing a will if they have been diagnosed with the disease, which can be problematic for them and their family, as well as highly frustrating.

Times have changed dramatically, and in this modern world it should be quick and easy to create a will that will be valid and lay out all the testator’s wishes. Electronic wills – something that the Law Commission is recommending become commonplace – will certainly help with this, but updated laws regarding medical issues that we now have a much better understanding off will be a great step forward. 

What Is A Lasting Power of Attorney?

A lasting power of attorney is a tool that you can use to give someone authority to make decisions for you if, at any time in the future, you lack the mental capacity to do so for yourself. The lasting power of attorney can be used for both financial and medical or care decisions.

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In financial situations, the lasting power of attorney can be used for buying and selling property, mortgage payments, investments, ensuring bills are paid, and arranging any repairs that need to be made to properties. When it comes to healthcare, it can cover everything from where someone should be cared for (at home with a carer, in a home, or in a hospice, for example), what kind of care should be provided, and even end of life decisions including continued care.

If you choose to name someone as your lasting power of attorney it must be someone you trust, and with whom you can have meetings to work out what should or should not happen in specific circumstances. In financial situations, whoever is your power of attorney must keep detailed accounts of anything that is spent.

In order to set up a lasting power of attorney, however, you must be in good mental health. This is not something that can be done if your mental capacity is already failing. Equally, you must not have made the lasting power of attorney under duress. It will need to be signed by someone in a professional capacity such as a solicitor, doctor, or social worker. Once this is done, the LPA must be registered with the Office of the Public Guardian before it can come into effect.  

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