Dementia, Estate Planning and Your Will

September is Alzheimer's month and 19-25 September is Dementia Action Week.  The 2022  campaign is A little support makes a big difference so in the spirit of this theme we have prepared this blog to explain what you can do if you or a loved one has been diagnosed with dementia when considering the potential ramifications of this diagnosis on your Will and other personal legal documents.

Can a person with dementia make a Will?

Most people would imagine that a person with dementia is not capable of making, or even changing a Will.  However, depending on the cause and progression of the disease, even a person with dementia can still have “testamentary capacity” to make decisions about their Will.

The term testamentary capacity means at the time of making a Will, a person must:

  • understand what they are doing and provide adequate instructions;
  • understand their financial position in regard to assets and property;
  • comprehend and appreciate who they should leave their estate to; and
  • be suffering from no disorder or delusion of the mind that would influence them disposing of their property;

One of the main issues of concern is whether a person with dementia can understand the legal consequences of their decisions at the time of providing instructions to his/her solicitor.  Medical evidence is highly relevant where a person’s testamentary capacity is in question – a solicitor may ask the client to obtain an opinion or formal medical report from a healthcare professional to guide them in their judgement as to whether a client has capacity to make their own decisions.  Ideally, this would be a detailed conversation with a neuropsychologist or similarly qualified medical professional outlining the person’s ability to make decisions about their Will, and the extent (if any) to which the dementia diagnosis may influence their decision making abilities.  By taking these steps, the client can reduce the chance of family members arguing about the validity of their Will after they have died.

Having a valid Will ensures your affairs are in order to minimize the likelihood of disputes against your estate.  If you die without a Will or without a valid Will, you are said to die “intestate” – the legislation that prescribes the process as to how your estate will be distributed in the case of intestacy is set out in the Administration and Probate Act 1958 (Vic).  In these circumstances, the distribution of your estate may end up being very different from what you would have wanted.

So what other personal legal documents in addition to a Will are worth considering when a diagnosis of dementia has been given?

Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker

When a person has been diagnosed with dementia it may also be time for them and their loved ones to consider reviewing, or in the instance of not having current documentation, setting up an Enduring Power of Attorney and an Appointment of Medical Treatment Decision Maker.  Why these documents are particularly important in the case of dementia is that they plan for future decision-making (where you no longer have capacity to make your own decisions) and ensure your wishes are well documented should or when your circumstances change.

An Enduring Power of Attorney is a document appointing your nominated Attorney to “stand in your shoes” and make decisions on your behalf regarding your financial and personal matters.  Financial matters include decisions regarding your property and finances; whilst personal matters relate to lifestyle decisions such as where you should live.  You can appoint one person, or more than one person, to make your decisions for both financial and personal matters.  If you appoint more than one person, you need to consider how you want them to make their decisions.  For example, you may want them to make decisions “jointly”, which means decisions should be made together; or you may want them to make decisions “severally”, which means they can make decisions individually.  Having more than one person acting may be beneficial if your nominated attorneys would be complementary and work well together.  Problems can occur if, in the case of more than one attorney they don’t agree or get along.  Our advice is to think very carefully about the practicality of multiple versus one attorney to act on your behalf and follow your wishes. Every case will be different and warrants consideration.

What happens if there is no Enduring Power of Attorney when you die?

If, as the person diagnosed with dementia you do not have an Enduring Power of Attorney in place to make decisions on your behalf when you do lose capacity to make such decisions, then an application will need to be lodged with VCAT (The Victorian Civil & Administrative Tribunal), to determine who may be best placed to make decisions about your personal and financial matters.

The Appointment of Medical Treatment Decision Maker also empowers the person you appoint as your decision maker to consent or refuse medical treatment on your behalf.  People underestimate the pressure placed on loved ones when difficult medical decisions need to be made.  In the event you lose capacity and are unable to make medical treatment decisions for yourself, the appointment of a medical treatment decision maker gives your loved one’s peace of mind to know that they are making informed decisions on your behalf because they understand your wishes.

At Burke & Associates Lawyers, our Wills & Estates Lawyers understand all too well how much difference the right support can make for our clients and we hope this blog has provided useful information and positive advice for your consideration.

Our Wills & Estates Legal Team has over 30 years of experience between them and they can provide advice with all aspects of your estate planning, including preparing and advising on Wills, Enduring Powers of Attorney and Appointments of Medical Treatment Decision Maker. For more information, or to make an appointment with our Wills & Estates Lawyers, please contact us on +61 3 9822 8588.

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