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Wills, Trusts & Power of Attorney

By Nicolae Trofin

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First cause of death in 2015 is Dementia and Alzheimer

2015 saw dementia and Alzheimer’s as the leading cause of death for the first time at 11.6%.

Largely due to better methods of diagnosis paired with an ageing population, Office for National Statistics (ONS) figures indicate that 61,686 people died from either dementia or Alzheimer’s last year.

Elizabeth McLaren, Head of Life Event Statistics at the ONS, said: “In 2015, dementia and Alzheimer’s disease became the leading cause of death in part because people are simply living longer but also because of improved detection and diagnosis. An updating of the international rules for determining the underlying cause of death is also a factor, with the increase in cases attributed to these conditions accompanied by falls in other causes.”

For those with dementia, as the condition progresses, it is likely that their mental capacity will deteriorate.

Lacking mental capacity means being unable to make a certain decision or take a particular action at a time when a decision or action is needed. The lack of capacity may only be in relation to certain decision making abilities. Although an individual may be able to make everyday decisions, they may lack capacity in regards to more complex matters, such as making a will for example.

Similarly, capacity may change over time resulting in an individual being unable to make a decision at a later point in time. This can be the case where certain illnesses or conditions – such as dementia –  impact the person’s memory.

Capacity assessments are important in order for someone’s best interests to be the starting point of any decision needing to made. This philosophy underpins the Mental Capacity Act 2005 (MCA), which provides the legal framework for making decisions on behalf of someone else, should they lack capacity. Without relevant assessments being carried out, powers to make decisions may be removed or given where they should have not been and as a result, decisions are not made in the individual’s best interests.

An assessment is usually due where a person’s behavior has caused doubt as to whether they possess capacity or somebody else has stated they have concern about the person’s capacity.

This may also be due to an individual being diagnosed with an impairment or disturbance which affects the working of their mind or brain, or it has already been observed that they lack capacity in relation to decision making within their life.

The prominence of dementia and Alzheimer’s, as highlighted in the ONS results, could be this disturbance which impacts the decision making abilities of an individual.

When actually assessing capacity, a two stage test is used. This examines:

  • Whether a person has an impairment of the mind or brain which affects the working of the mind and;
  • If this is the case, does this impairment render the person unable to make the relevant decision at the particular time it needs to be made.

The ability to make a decision is then also assessed. This considers:

  • Whether the person has a general understanding of the decision they need to make and why
  • Whether they have a general understanding of the likely consequences of making the decision or not
  • Whether they are able to understand, retain, use and weigh up the relevant information
  • Whether they are able to communicate the decision

Will writing is heavily linked with decision making, given the often large quantities of choices needing to be made. These choices may also be among the most important someone is to make; distribution of assets built up over a lifetime upon death can often have significant consequences for those left behind. Given the serious and often emotional nature of drafting a will, ensuring the necessary level of capacity is essential. Without this, an individual may risk their assets being distributed in a way which is contrary to their wishes.

Where a will is being written, it is usually necessary for the legal practitioner or solicitor to assess the client’s capacity, however more detailed assessments may be necessary in more complex cases. For example, this may be appropriate where illnesses such as dementia, develop gradually. This can make it more difficult to establish when capacity had become affected. At this point, it may necessary to gain an expert opinion from the medical profession.

For advice in making your Will or Lasting Power of Attorney Free Consultation No Obligation is available if you live in Bexhill, Hastings, Battle, Rye, Hailsham or anywhere else in East Sussex.

This message was added on Thursday 1st December 2016

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