Can my father with dementia cut my sister out of his Will? This question was the subject of a letter published recently in the Daily Mail (22 April 2023).
The predicament is something many people face and, initially, the question may seem relatively straightforward. However, there is far more to it than a simple ‘yes’ or ‘no’ answer, and the query raises several important issues worth exploring in a bit more detail.
It also highlights the importance of a joined-up and all-round approach to estate planning as it shows how one legal issue can quickly spiral to incorporate many other areas of law.
In this blog, our team of Private Client Solicitors considers the question and looks at some of the legal issues that it raises.
Can my father with dementia cut my sister out of his Will?
The letter to the Daily Mail was as follows:
I have just been granted lasting power of attorney for property and financial affairs for my dad. He is in a care home as he has vascular dementia. I may need to sell his house in order to pay for his care when his savings run out.
He made a Will which states that, when he dies, the house will be sold, and the proceeds split between my sister and myself.
However, she is not involved in his life at all after a huge family disagreement and she was financially abusing him.
The reader went on to ask:
What happens about her share of the house sale when he dies?
He has talked about changing his Will so that all the money from the house sale comes to me.
Is it too late for him to change his Will, as he still has mental capacity enough to know what he is signing?
Can the reader’s father change his Will?
In short, the simple answer is ‘yes’. People with dementia can change and update their Will to reflect their wishes.
However, to do so, he will need to demonstrate that he has ‘testamentary capacity’. This is the legal threshold of mental ability required to be able to make, or change, a Will and involves the person making the Will (known as a ‘testator’) being able to demonstrate that they are of sufficiently sound mind to be able to make a Will and understand its consequences.
Testamentary capacity should be assessed by an expert psychiatrist and is usually based on an interview with the testator. The interview will consider previous medical and psychiatric history, mental state, cognitive examination, review of capacity and an opinion on undue influence.
If you find yourself in this position, ensuring you get an expert assessment from a qualified professional is crucial. It will be a big help if there are any legal challenges to the validity of a Will further down the line.
If the reader’s father demonstrates that he has the necessary capacity, he can update his Will to reflect his wishes. The new Will should be drafted by a solicitor who will ensure that the testator has the capacity to do so, and that there has not been any undue influence involved.
Can the reader sell the house to pay her father’s care fees?
To sell a loved one’s property on their behalf, you must have been appointed as an attorney under a Lasting Power of Attorney (LPA) that allows you to deal with the property and financial affairs of your loved one. The LPA must also have been registered with the Office of the Public Guardian (OPG).
You can start making decisions while the donor still has mental capacity if the LPA says you can and the donor gives you permission. Otherwise, you can only start making decisions when they do not have mental capacity.
If the reader has been granted the correct permissions and has followed the correct process, she should be able to sell the house to pay for her father’s care fees.
However, selling a house to pay for care fees is not a decision that should be taken lightly and, in many instances, is not always necessary as there are often other options available.
What can you do to fund care fees?
If you plan early, there are several steps you can take to finance care home fees without having to sell your home. These include:
- Exploring other payment options, such as care annuities, deferred payment schemes and equity release.
- Making a financial gift to children.
- Setting up a Trust. Trusts can allow you to protect certain assets, as assets placed in Trust are no longer owned by the individual but instead belong to the trustees.
You can read more about the options available to you in our previous blog by clicking here: How to Protect Your Estate From Care Home Fees.
If you are concerned about potential future care home costs for yourself or a loved one, you should seek specialist advice for your circumstances at an early stage. Larcomes has been offering a comprehensive range of legal services for individuals and businesses for over 100 years. We provide straightforward and reasonably priced specialist legal advice for whatever situation you face.
Our multi-disciplinary practice means we provide our clients with an all-round approach to estate planning. Where houses are being placed into a Trust, our Wills and Probate solicitors work closely with our in-house Property Team to provide a complete service to suit your needs.
Specialist Estate Planning Legal Advice
Every estate planning tool has advantages and disadvantages, and we recommend that you seek specialist legal advice if you are considering making any changes for yourself or on behalf of a family member.
For a personal, attentive and cost-effective service on the legal matters that matter to you, contact Larcomes now on 023 9244 8100.