KNOWLEDGE

How to future proof your legal affairs

Morton Fraser Associate Elizabeth Sparks
Author
Elizabeth Sparks
Associate
PUBLISHED:
21 September 2022
Audience:
Individuals and Families
category:
Article

September is World Alzheimer's month and today (21 September) is World Alzheimer's Day.  This international campaign aims to raise awareness and challenge the stigma associated with a diagnosis of dementia. The theme for this year's campaign is "Know Dementia, Know Alzheimer's", focusing particularly on post-diagnostic support.

However, it is important to consider safeguarding your legal affairs in advance of such a diagnosis. Unfortunately, as solicitors we can sometimes be asked to assist too late, and it is not possible to act on instructions because the person's condition has advanced to a point where they are no longer able to make those sorts of decisions. 

There are several things you can do to help to future-proof your legal affairs and ensure that you have done what you can to provide for the scenario where you receive a diagnosis of dementia.

Firstly, you can ensure your Will is up to date and future-proof today - legally, you can only make or change your Will if you have the mental capacity to do so.  You can provide for the various different scenarios that may arise at the time of your death.  For example, you can provide for alternative beneficiaries in the event that your first choice of beneficiary were to predecease you, and/or for certain bequests to be made only in the event that the total value of your estate exceeds a certain limit.  By ensuring that your Will is well-drafted and provides for the various possible scenarios that could be imagined, you can help to ensure that your Will remains fit for purpose, even if you were to lose the ability to update that as your circumstances change in the future.

Secondly, you can grant a Power of Attorney to ensure the people you choose have the power to make the decisions about you and your affairs in the event you were to become unable to do so yourself - you should consider who you would want to be responsible for making decisions about your financial and welfare affairs in the event you were to lose the ability to make those decisions for yourself and safeguard your own affairs, and then grant a Power of Attorney. 

Like a Will, a Power of Attorney can only be granted if a doctor or a lawyer considers that you have the mental capacity to grant one and therefore, just like insurance, it is important to put the Power of Attorney in place long before you contemplate needing it.  In the event that somebody loses the ability to grant a Power of Attorney and has not granted one before, it can be necessary for family members to apply for powers to look after them through the Courts - a costly and time-consuming process at what is likely to be a stressful time.  Hopefully your Power of Attorney will gather dust and never be required, but it can be invaluable if it is required.   

Finally, you may wish to consider an Advance Health Directive (also known as a Living Will) if you have more specific wishes regarding your future medical treatment - Advance Directives are not legally binding documents themselves but are widely recognised by healthcare professionals as a way of identifying your wishes. You can include in them any treatments you are certain you would not want to receive, including invasive treatments in the event that your illness is incurable.

An Advance Directive allows you to speak on your own behalf to your healthcare team if you should ever lose capacity. It can provide a sense of security that you will not be given treatments you would not have wanted if you ever lose the ability to articulate this yourself.

Again, an Advance Health Directive can only be granted while you are still capable of understanding what it is about and the impact it will have on you.

If you wish to discuss updating or making a Will or Advance Directive, granting a Power of Attorney, or with wider Inheritance Tax and estate planning please contact us.  We are available to meet clients both in the office and outwith the office where appropriate.

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.