Receiving a diagnosis of dementia can be distressing.

But, it is important to realise that a diagnosis of dementia does not mean that you will have lost the capacity to continue to manage your finances or to deal with your personal legal affairs, such as making a Will.

The following article was prepared by Michael Graham of Cleaver Fulton Rankin solicitors, Belfast. Michael is legal advisor to Will to Give.

The law provides a presumption of capacity for every person which can only be denied where there is clear evidence of a loss of capacity.

Capacity is also ‘issue specific’, which means that it is inappropriate to take an ‘all or nothing’ approach.

It will normally be the case that a person will have the capacity to carry out some tasks but not others.

What is important is to assess whether or not a person has retained capacity in respect of the relevant task at hand.

When meeting with your solicitor in order to prepare you Will, he or she will be aware of the issue of capacity especially if you have received a diagnosis of dementia.

It is for the solicitor to discuss matters with you and establish to their satisfaction whether or not you retain the capacity to make a Will.

This is known as ‘testamentary capacity’.

If your solicitor has any doubts they may recommend that a formal capacity assessment be carried out.

This would normally be done by a consultant psychiatrist but could be with your GP if they are able and willing to assist.

In the event that the capacity assessment confirms that you are able to make a will then matters would proceed as normal.

If there is evidence of a loss of testamentary capacity then it may be necessary for an application to be made to the Office of Care & Protection in Belfast for what is known as a ‘statutory Will’.

This is essentially a Will made by the Court on your behalf pursuant to the Mental Health (Northern Ireland) Order 1986.

Such a Will is made on what is known as a ‘substituted judgment’ basis  –  in other words it must be demonstrated that the Will being proposed is the sort of Will that you would have made if you had retained your capacity.

If you have concerns about any of these issues you should consult a suitably qualified solicitor who will be able to advise you further.

You may wish to speak to a solicitor who specialises in older client law.

Solicitors for the Elderly is a national association of independent lawyers who specialises in older client law.

Its members are also trained in older client care.

They can consider the mental and physical difficulties which can affect older and vulnerable clients and are aware of the health and social problems that people may face.

Alternatively, you can use the NI Law Society website to search for a solicitor in your local area.

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