It was World Alzheimer’s Day on the 21 September 2019 offering an opportunity for organisations and individuals to raise awareness of the disease and to do all that we can to support those living with the illness.
The generic term dementia covers a variety of conditions which result in an impairment of brain function. Sometimes I am asked if someone can still make a Will if they have been diagnosed with dementia? Not always an easy question to answer.
What is required to make a Will in Scotland?
The individual must have testamentary capacity. They must be capable of:
- Understanding what a will is and the nature and effect that it will have
- Understanding the extent of what they will be leaving in their will
- Understanding and appreciating the obligations which someone in their position would usually have towards their family and other relevant individuals
In Scotland, capacity is considered by defining what incapacity is. The Adults with Incapacity (Scotland) Act 2000 provides a definition of incapacity which includes being incapable of:
- Acting; or
- Making decisions; or
- Communicating decisions; or
- Understanding decisions; or
- Retaining the memory of decisions.
The difficulty is that someone who struggles to remember their decisions may still have sufficient capacity to make and execute a will whereas someone who can still buy groceries may not have the capacity to make a Will.
The golden rule is that if someone has dementia or another condition that may affect their decision making then it is always advisable to get medical evidence to say they are able to make a Will to avoid any dubiety if the Will is later contested.
But above all our advice still remains plan ahead and plan early. Put a Will and Power of Attorney in place, in good time. This will ensure that your wishes are respected following your death or if you become incapable to look after yourself.