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SPOTLIGHT ON DEMENTIA – HOW SOLICITORS CAN HELP BEFORE IT IS TOO LATE

DEMENTIA Action Week 2022, run by the Alzheimer’s Society, is an awareness week to encourage people to ‘act on dementia’.

The theme this year is diagnosis. As a consequence of the global Covid Pandemic diagnosis of dementia is reported to be at a 5-year low. This is not because there are less cases but rather the reality of Covid has led to lack of face-to-face GP appointments, staff shortages due to having to observe required isolation periods and fear particularly for older and vulnerable people of catching Covid means many people have avoided actually booking an appointment. In addition, there can be a reluctance to face the prospect of a diagnosis of something that has no cure and is less traumatic and easy to dismiss as forgetfulness and an automatic consequence of aging like aches and pains.

The Alzheimer’s Society have been encouraging those who are concerned they or a loved one may be experiencing signs of dementia to seek support and guidance. Getting support and guidance is vital at an early stage particularly with regards to addressing the legal consequences of failing to act.

There are currently around 900,000 people with dementia in the UK. This number is expected to rise sharply in the coming years as we are an aging population, thanks in no small measure to advances in health care, hygiene and better awareness around taking care of ourselves- better diet, less smoking and improved exercise, and education around health matters generally.

Dementia can affect a person at any age, but it is more commonly diagnosed in people over the age of 65 years, with the condition affecting 1 in 6 people over the age of 80 according to the Alzheimer’s Society research.

If somebody develops dementia before the age of 65, they are described as having ‘young onset’ dementia.
Dementia is a wide term that covers several progressive conditions that impact the brain and can be secondary to other conditions such as Parkinsons. The most well-known and common types of dementia are Alzheimer’s disease and vascular dementia.

Signs that could indicate a person has Dementia:

• Memory problems – people with dementia might have problems retaining new information. They might get lost in previously familiar places and may struggle with names or words that were
once came easily.

• Cognitive ability – people with dementia may have difficulty processing information. This could be their perception of time or a place, for example, getting up in the middle of the
night to go to work, even though they’re retired. Also, their concentration could be affected.

• Communication – people with dementia may repeat themselves often or have difficulty finding the right words. Reading and writing might become challenging.

• Changes in behaviour – they might experience changes in personality, mood swings, anxiety, and depression. They can lose interest in doing things they once loved. Their self-confidence
might also be affected.

• Differences engaging with their surroundings – people with dementia can experience changes in vision and hearing as their brain processes information in a different way. Some people
can find noisy places very disturbing and can find it hard to participate in large group conversations.

• It is assumed that the first sign of dementia is memory loss, but this not always the case. The other signs described above can occur earlier.

The changes that come with dementia can come and go, it is not uncommon to hear people say today was a good day or a bad day in terms of levels of forgetfulness or confusion. People living with dementia can often describe a feeling of fog coming over them and then lifting.

The symptoms of dementia gradually get worse over time. How quickly this happens varies from person to person and some people stay independent for years. There are huge advances in medicine and medications that can slow things down despite there being no cure- so the sooner a diagnosis occurs the sooner interventions can be put in place to slow the process down.

If a diagnosis of dementia is given, the GP should then ensure that the person with the diagnosis and their family are made aware of any specialist advice and support services in their area, this is usually medical/ therapeutic/charity related and not specific to the legal advice that might be needed.

Why do you need a solicitor if you have a diagnosis of dementia?

To instruct a solicitor a person must have the mental capacity to do so. Dementia affects capacity and sadly gets progressively worse meaning that acting soon after diagnosis can allow a person to put their affairs in order whilst they still can. There may come a time when a person wants to change their will and provided, they have capacity, they can do so. When instructed, a solicitor will talk through the process of making a will and take instructions. During this process, the solicitor is establishing if the person understands what they are doing and will advise if a person appears to have cognitive issues and what steps should be taken to achieve the desired outcome of making a will or whatever other legal matter they wish to resolve. In many cases solicitors find themselves advising that a person lacks capacity and has left it too late to resolve their legal issues quickly and cost effectively and instead is faced with a more lengthy and costly court application or worse yet the prospect of being left in a position where they are stuck with an outcome they would not want. Solicitors can still help to resolve matters by providing advice on an application to the Court of Protection and making that application on your behalf. This is much more costly, time consuming and stressful and gives no guaranteed outcome because you are in the hands of the court.

Here are some examples of situations that may arise and how acting quickly could have led to a quicker and cheaper outcome.

• Mr and Mrs X made mirror wills in 1969 upon the birth of their first child. Mrs X passed away in 2006 following a brief battle with cancer. Mr X inherited his wife’s estate and did not consider at the time of her passing any need to update his own will. Mr X was later diagnosed with dementia in 2019. His will had not been updated. Mr and Mrs X had 2 more children in the 1970’s but had failed to add them in to their wills. Mr X did not have the ability to update his will following his diagnosis and following his passing his children are sadly now embroiled in a bitter and expensive battle over his estate.

• Mr and Mrs Y bought a property in the 1960’s and have loved living in their large rural home for many years. They were advised in the 1990’s to update their wills and hold their property as tenants in common (the law has changed so advice given at the time would be very different from the advice that would be given today). Mr Y has been diagnosed with dementia and has become violent and has been placed under section for his own safety and will likely remain in a long-term care facility as Mrs Y cannot manage his condition and behaviour. Mrs Y would like to downsize and move to a bungalow. Mr & Mrs Y never considered that they might need a lasting power of attorney to allow one to manage the affairs of the other if one become unable to look after their affairs. They assumed as they were married, they would automatically be allowed to do so. This is not the case. Mrs Y has deteriorating physical mobility and desperately needs to sell her home as she has no downstairs bathroom facilities. Mrs Y needs to make a court application to be appointed to manage her husbands’ finances and deal with a sale of his half of the house. Had they thought about power of attorney sooner they could have saved thousands of pounds.

• Miss Z went to see a solicitor to make a will. She unfortunately lacked capacity at the time of her doing so. She was 86 years old and was taken to the solicitors by a concerned social worker. She expressed the wish to leave her estate to the church where her family members are all buried and for the church to use the monies for upkeep and maintenance. Unfortunately, she was very confused and after further enquiries it was apparent that she had been diagnosed with dementia and was deemed by her Dr not to have the ability to instruct a solicitor. Miss Z was cared for by the local authority and upon her death her estate was administered, and the monies were divided in varying proportions between 9 distant relatives, none of whom had met her or knew her (under the laws of Intestacy) and her beloved church received nothing. The 9 beneficiaries were happy to receive the surprise windfall- but at considerable cost in tracing them and investigating the extent of her family tree- typically involving the very expensive Office of the Official Solicitor and contrary to the expressed wishes of Miss Z. Had Miss Z acted sooner and made a will her estate would not have been depleted by tracing costs and her wishes would have been acted upon.

• Mrs A never made a will leaving her estate intestate when she passes- unless the court make a will for her before her passing. Her three children will inherit her estate on her passing via intestacy. Mrs A has dementia and cannot now make a will. Mrs A sadly had a big falling out with her son who is currently serving a custodial sentence for a serious crime. Mrs A’s 2 other children are adamant that their mother would no longer wish their brother to inherit a share of her estate given his crimes. She cannot make a will to exclude him. Her daughters wish to make an application to the court of protection to exclude him. This is by no means guaranteed to succeed and is an unusual situation but demonstrates that unexpected things can happen.

• Mr B has Alzheimer’s and is now resident in a nursing home. He did not do a power of attorney when he was well. His son now needs to sell his property as it is deteriorating, and he needs to make an application to the court to get permission to do so. In addition, he has made an application to be appointed to manage the welfare decisions that now need to be made for his father. The court have refused to grant his application (he has done nothing wrong- it is simply the case that the court rarely appoint welfare deputies). Had Mr B done a power of attorney when he had capacity for health and welfare his son would be able to make those decisions now without an application to the court.

There are dozens of occasions when it may be necessary to face a situation that you just did not expect and as boy scouts sometimes say, ‘Failing to prepare if preparing to fail.’

Seeing a solicitor before it is too late means you could avoid the heartache and strain on the finances that inevitably arises with a long, slow court application. We can usually resolve most matters but why use a sledgehammer to crack a nut when there is a much less messy way.

Call or email today for expert advice from Head of Private client Solicitor Kerry Davies 01543 442101 or kd@adcocks.com or trainee Solicitor Maddie Williams 01543 442109 or mw@adcocks.com

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