Mental capacity can become increasingly fragile as we age, putting at risk our wishes to pass on an inheritance. But there are ways to protect you and your loved ones’ legacies – and avoid lengthy court battles.
A recent case in the High Court highlights the dangers of waiting too late to get our affairs in order, how useful it can be to write a will when we are fit and healthy, and the merits of a lasting power of attorney.
Michael Gwilliam died in 2022 at the age of 79. His daughters said he had always wished to die intestate – without a will – so they would automatically inherit his estate, worth between £750,000 and £1 million, the BBC reports.
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But after his death his daughters found he had in fact made a late will – while experiencing late onset schizophrenia that caused delusions his daughters and others were acting against him.
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Inheritance and mental capacity
Gwilliam wrote the will in 2014, the year he was sectioned under the Mental Health Act. The will saw a quarter of his estate left to his daughters with the rest to be split between his sister, former partner and three nephews.
Gwilliam’s four daughters challenged the will's validity on the basis their father lacked the mental capacity to write it. They were eventually successful, but said winning was an "unbelievable relief" after such a long and difficult case.
John Holdsworth, board director at The Association of Lifetime Lawyers and associate and chartered legal executive at law firm Coodes, said: “Having a loved one who has either lost or is losing capacity is deeply challenging.
“The best advice is to get hard conversations out of the way before it’s too late – to make sure families, loved ones and their last wishes are protected. However, we know that things can often change quite quickly.”
If you’re finding yourself in a situation where your loved one has already lost capacity, and they don’t have a lasting power of attorney (LPA) or a will in place, you may need to apply to the Court of Protection for authority to act on their behalf.
It’s a good idea to seek advice from regulated experts, such as accredited members of The Association of Lifetime Lawyers, who specialise in providing tailored legal advice for older people and those in vulnerable circumstances.
Holdsworth said there are at least six things to consider if your loved one is losing capacity where there is an estate to inherit.
Six ways to prepare for a loved one losing mental capacity
1. Have difficult conversations before it’s too late
Nobody likes to think about a parent, loved one or themselves getting older, becoming vulnerable or reaching the end of their life, but planning ahead is key to ensure both wellbeing and security, advises Holdsworth.
An important part of this is discussing what happens should you or your loved one lose capacity to make their own decisions in later life. It’s important to at the very least, have a lasting power of attorney and an up-to-date will in place.
2. Creating a lasting power of attorney
Having a lasting power of attorney in place allows you to appoint someone you trust to make decisions on your behalf if you are no longer able to.
There are two types of LPA, one of which concerns decisions about property and finance, the other, decisions about health and welfare.
“Both types of LPA are extremely powerful legal documents, allowing attorney(s) to make important decisions about the management of property, bank accounts, and bill payments, and choices around care plans, medical treatment, residence and end of life wishes,” said Holdsworth.
For decisions around property and financial affairs, an individual can activate their LPA before they lose capacity, so if your parent or loved one decides they no longer want to manage their own finances, despite being of sound mind still, they can seek the support of their attorney(s) immediately.
For decisions around health and welfare, an LPA is only activated once the individual is deemed to have lost capacity.
3. Having an up-to-date will in place
It can be helpful to think of a will as something that can bring great comfort to your family and to you. It outlines how you want your assets to be distributed after your death and appoint people you trust to put your wishes into action.
“If you or your loved one is starting to lose capacity, choosing an appropriate lawyer with training in mental health and capacity law to help you is something that could be really helpful,” said Holdsworth.
However, whilst making a will is usually recommended to ensure your wishes are carried out, it is not compulsory and there are rules in place to say what should happen if no will is made and you die “intestate”.
4. Have a capacity assessment completed
If someone might have capacity issues, you need to ensure that they are legally able to make a will. To demonstrate this, it is good practice to have a specific capacity assessment completed by a qualified person at the time they make their will so this capacity can be documented should a challenge come after the person’s death.
Capacity for making a will stems from a 19th century case where someone wanting to make a will needs to understand:
- what a will does
- have a general understanding of their assets and where they are (property, bank accounts, investments etc)
- understand who might reasonably expect to inherit from them
- and be free from any delusions that would affect their ability to make rational decisions about where their assets go after their death.
5. Apply for a statutory will
Additionally, if someone wants to make a will, but has lost the capacity to do it, you can apply to the Court of Protection for a statutory will.
The Court will take the views of the person and their family and friends if appropriate into account before a best interest’s decision is made on their behalf by the Court.
This route can also be used if you find out a will has been made in circumstances you think are suspicious and after the person has lost capacity.
6. Apply for deputyship
A deputy is a person appointed and authorised by the Court of Protection to make decisions about either the property and financial affairs or personal welfare of someone who cannot make decisions for themselves as they lack mental capacity.
This could be, for example, because they’ve had a serious brain injury or illness, they have dementia, or they have severe learning disabilities. A deputy can be a professional (like a lawyer) or a family member or friend (lay person).
To act as a deputy for your parent or loved one’s affairs, you must provide the Court of Protection with medical evidence of the loss of capacity, as well as lodging an extensive application and arranging the necessary insurance.
A qualified lawyer can help you to gather the required documents and complete the forms correctly and can also act as a deputy if you prefer not to take on this role yourself.
