Added to that, there is generally very little awareness of Lasting Powers of Attorney (LPAs) and their importance in making critical decisions when life-changing events such as a brain injury occur.
Assumptions are often made by brain injury survivors and their families around what can and cannot be done from a legal point of view.
Here, Christine Thornley, a Partner on the Tax, Trusts and Estates Team at Irwin Mitchell LLP, answers some frequently asked questions about Wills and LPAs after brain injury.
What legal documents are important?
Everybody, whether they have a brain injury or not, should think about making a Will and Lasting Powers of Attorney.
A Will deals with the distribution of assets on death and Lasting Powers of Attorney (LPAs) ensure that there is someone you trust to make decision about your finances and health if you can’t make those decisions yourself.
These documents could prove critical for someone with a brain injury.
Is it possible to make a Will and Lasting Power of Attorney when you have a brain injury?
It very much depends on the injury and the impact that it has had.
The tests for capacity are slightly different for a Will and LPA but having a brain injury does not automatically mean that a person lacks capacity. Capacity is decided on a case-by-case basis, based on the decision being made at that specific time.
When someone has a brain injury capacity is not always easy to determine. If this is the case a medical practitioner needs to be asked for their professional view. If you are making an LPA the document involves a capacity assessment in any event.
How important is a medical opinion?
A Will and/or LPA can be challenged if the person who made it did not have the necessary capacity at the time and this could lead to a Will or LPA being declared invalid.
If an LPA is declared invalid, it could mean the person would be left with no one appointed to make decisions for them while an application to the Court of Protection is being made. This could be very stressful for all involved, not to mention incredibly costly if it were contested.
A claim that a Will was invalid for lack of capacity would only be made once the person had died. If this happened, historic medical records would have to be used to determine capacity and it is much more difficult dealing with this than when the Will is being made.
Any challenge against a Will can also be incredibly expensive.
Do I need to tell my solicitor about my brain injury?
Yes. If you let your solicitor know about your brain injury they will be able to put all the possible protection mechanisms in place. This will ensure, as much as possible, that your documents won’t be challenged and, if they are, there is evidence generated at the relevant time to prevent your documents being declared invalid.
Taking the next steps...
Why not start today! If you’d like to start the process of writing your Will, Headway can help. Visit headway.org.uk/leave-a-legacy to find out about our easy, low-cost Will-writing service.
Many firms on the Headway Solicitors List can help with Wills and LPAs, so simply visit headway.org.uk/legal-advice to find a firm near you.
You might find Headway’s information on supporting people to make decisions after brain injury helpful. To find out more, visit headway.org.uk/about-brain-injury/individuals/caring/supporting-people-to-make-decisions/, or alternatively contact our helpline on 0808 800 2244 or helpline@headway.org.uk.
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