Capacity to make a Will and Lasting Power of Attorney

Defining and determining the capacity of an individual can be a very tricky task given capacity has different levels. For example, a person may not have the capacity to make a complicated decision in respect of their finances but they can at the same time be judged to have capacity to make more simpler decisions such as deciding what clothes to wear or what food to eat.

The issue of capacity becomes crucial where an individual is intending to make a Will, Lasting Power of Attorney or execute and enter into any other legal agreement. As any concern to an individual’s capacity can bring into dispute the validity of the document executed. This is of particular importance to vulnerable individuals such as those who have been diagnosed with dementia or suffer from disabilities which can affect their ability to make decisions.

Where an individual has capacity they have the option to make Lasting Powers of Attorney (LPA) to appoint one or more attorneys to deal with their property and financial affairs and/or health and welfare. In the event they then lose capacity the appointed attorneys would be responsible for making decisions on their behalf. The advantage of planning ahead and ensuring you have an LPA means that you can have the peace of mind that should you be in a position where you are no longer able to make your own decisions an individual of your choice whom you trust will make those decisions on your behalf.

The contrary position would be if you lost capacity without having made an LPA the Court of Protection would be involved and a Deputy would be appointed to deal with your affairs on your behalf. But the Deputy may not be of your choice!

To demonstrate the necessary capacity to execute a Will the testator or testatrix must be able to understand the nature of making a Will and the effect of doing so; understand the extent of the property they dispose of in their Will; appreciate the people who they would normally be expected to provide for and be free from any mental disorder that prevents the exercise of their natural faculties when making their Will. If any of these conditions cannot be satisfied then the capacity of the testator or testatrix can be questioned and it would be appropriate to appoint a medical expert to assess capacity before the Will is executed.

Planning ahead and ensuring your affairs are in place in a timely manner can help save you and your loved ones the stress and worry should you lose capacity in the future. As lack of testamentary capacity is also one of the main grounds for contesting a Will which our Contentious Probate Partner, Nazia Nawaz has recently been discussing – the full blog for this can be read here.

If either you or a loved one is yet to make a Will or Power of Attorney and you would like to discuss this further and put arrangements in place or if you have any questions in respect of capacity or otherwise then please do not hesitate to contact our dedicated Wills and Probate team on 01484 821 500 or email us at willsandprobate@ramsdens.co.uk