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2 September 2021 | Comment |

Dementia: Capacity disputes with wills and the Court of Protection

The team looks at the impact which dementia can have on a person’s capacity.

Dementia and legal disputes

Most people make their wills in later life and official public records suggest that the average age of a testator (the legal term for a person who makes a will) in the UK is 58, with over half of the wills in the UK being made by those between the ages of 50 to 70.

There are currently around 850,000 people with dementia in the UK alone, and this is projected to rise to 1.6 million by 2040. One in 14 people over 65 currently suffer from it.

Legal disputes in relation to one’s mental capacity are common both in respect of those who are no longer with us and those who are alive where there may be concerns regarding their ability to make certain decisions.

A common ground for disputing a will, for example, is ‘lack of testamentary capacity’. During lifetime, the necessity for a court appointed deputy to look after a person’s health and welfare, or, more likely, for property and affairs is more often than not brought about by a person’s diagnosis of dementia rather than any other mental health condition. A person’s capacity to make a lasting power of attorney (LPA) is often challenged in the Court of Protection.

However, dementia is not a disease in itself. The word ‘dementia’ encompasses numerous brain-related illnesses, and is an umbrella term for a range of progressive conditions.

By far the most common types are Alzheimer’s disease and vascular dementia. It is now long-recognised that a diagnosis of dementia is terminal. Save for exceptional circumstances, the appointment of a Property and Financial Affairs Deputy for a person with dementia (known as a ‘protected party’) will be permanent and only cease upon the protected party’s death.

An ever-ageing population and further strain on already stretched resources means the number of Property and Financial Affairs Deputy appointments looks set to rise and, in turn, the number of contested applications within the Court of Protection will also likely increase. Similarly, disputed probate claims in respect of testamentary capacity are also set to increase for the same reason and due to a general shift towards more complex family units and second marriages, for example.

A fuller understanding of the impact and effects of the different types of dementia can be important when considering a particular decision in a protected party’s best interests or a person’s capacity to make a will.

Types of dementia

Alzheimer’s disease is a physical condition caused by changes in structure to the brain due to a build-up of plaques and tangles interrupting the transmission of messages. This affects concentration, decision making and everyday living skills.

Vascular dementia is caused by problems in the supply of blood to the brain commonly due to strokes, either cardiovascular accidents (CVAs) or trans ischaemic attacks (TIAs or ‘mini-strokes’), causing cell damage in the brain. The difference between the two being the period of time that blood flow to the brain is blocked; it is more temporary with a TIA.

It is not uncommon to have both of these types of dementia.

Sufferers of both types will have common symptoms: difficulty remembering recent events but long-term memory may remain good, poor concentration, difficulties recognising people or objects, poor organisational skills, confusion, disorientation, muddled or repetitive speech, reduced abilities and problems with decision making.

While it should always be borne in mind, from any professional perspective, that dementia affects everybody differently, it is also safe to say that there are specific traits in respect of the different types. This is particularly so when looking at cognitive decline which, by its nature, will of course have connotations both in respect of a protected party’s physical and psychological condition.

The following charts demonstrate the general deterioration on a person’s physical and mental health over time.

Deterioration over time with Alzheimer’s disease is a more gradual process than with vascular dementia:

Line graph Alzheimer's disease

In contrast, deterioration over time with vascular dementia is a more stepped-process:

Line graph showing deterioration over time with Vascular dementia as a more stepped-process

A TIA will have an immediate impact upon a person’s overall condition and this will be greater if they suffer a CVA. A sufferer may demonstrate no deterioration for a period of time following a stroke and their overall condition may remain unchanged when factors such as age and other disease are taken out of the equation. Of course, a person may experience just one TIA/CVA and live the remainder of their life with minimal change (associated with such a stroke) in their cognitive and other functions.

Line graph showing deterioration in a person with vascular dementia's mental and physical health over time after one stroke

With both types of dementia, it is important to be aware that, for the time being at least, a person’s cognitive function will never improve; dementia is a terminal illness. Sufferers of Alzheimer’s disease will experience a steady decline over a period of time. Sufferers of vascular dementia are more likely to have a stepped-period of decline in which a TIA or CVA will have an immediate impact but thereafter their functioning may remain relatively stable, demonstrating less of a decline in functioning than that of a sufferer of Alzheimer’s disease.

Relevance to will disputes and contested Court of Protection applications

Contested attorney, deputyship and Court of Protection applications, and will disputes will often hinge on expert medical opinion and a person’s capacity at a particular date to make a certain decision; in short capacity is time and issue specific.

Challenges relating to a person’s capacity to appoint an attorney to manage their affairs are common and can be brought by various parties including the Office of the Public Guardian, relatives or those responsible for a person’s care or wellbeing. Similarly, a claim based on a lack of testamentary capacity is one of the most common grounds to challenge the validity of a will.

However, as capacity is both time and, crucially, issue specific a person’s capacity to manage their property and affairs may be very different to their capacity to make a will. However, when investigating capacity, a similar approach can be applied with medical evidence and expert medical opinion usually proving vital.

If you need any advice about the topics raised in this post, please visit our Contested Wills, Trusts and Estates team page or contact us direct.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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