New research suggests that former professional footballers are three and a half more times likely to die of dementia than the general population. A study by experts at Glasgow University has investigated the potential link between heading a football and the risk of the dementia.
No doubt this study will need to be reviewed in detail by the Professional Footballers’ Association and there will probably be further studies and research commissioned. Understandably, the high profile of football means there will be a great deal of media interest in this story and any subsequent developments therefore keeping dementia in the media spotlight. It should be noted that the Alzheimer’s society estimates there are approximately 850,000 people living with dementia and the lives of many more carers will also be affected by dementia.
Legal Work & Dementia
The Alzheimer’s Society, through its Dementia Friends initiative, is keen to highlight that it is still possible for people living with dementia to live well. In specific reference to legal work the first point to make is that just because someone has been diagnosed with dementia doesn’t mean they are incapable of instructing a solicitor to carry out legal work on their behalf. Legal professionals, particularly those working in Wills & Probate, are experienced in assessing the capacity of their clients and the assessment will take place at the onset of the first appointment to ensure the client has the necessary mental capacity to provide instructions.
Assessing Mental Capacity
The test in determining whether a client has mental capacity to proceed with legal work will depend on the type of legal matter. The capacity test for a Will remains the test set out in the case of Banks v. Goodfellow [1870]. This principle was reaffirmed in the case of James v. James [2018] which Jo Robinson discussed in her recent blog. When a Lasting Power of Attorney (‘LPA’) is being prepared then the person making the LPA must understand:-
• What an LPA is
• Why they want to make it
• Who they are appointing as attorney
• Why they have chosen that person or those to be appointed
• What powers are being given to the attorney
It is important to note that neither of the above tests make any reference to dementia so people with dementia may well be able to proceed with a Will and/or a Lasting Power of Attorney. Each client can only be assessed on a case by case basis as there are many different types of dementia and each individual will be affected in a different way. It is perfectly feasible that somebody living with dementia may have the capacity to satisfy one, or possibly even both, of the above tests therefore could potentially proceed with a Will and LPAs.
A Plan of Action
As a general rule, the earlier dementia is diagnosed and the quicker solicitors are instructed, the greater the chance the person living with dementia will be able to proceed with their legal work. A diagnosis of dementia is often the catalyst for some people to ‘get their house in order’ though ideally a Will and LPAs should already be in place.
If, after assessment by the legal professional, there is still some uncertainty regarding a client’s mental capacity to proceed with legal work then a medical expert, potentially the GP, might need to be instructed to assess the mental capacity and provide a assessment which, hopefully, confirms the client has the mental capacity required to proceed with the legal work.
How We Can Help
All the fee-earners in Timms Solicitors’ private client department are experienced in assessing the mental capacity of their clients when preparing Wills and LPAs and, if necessary, could liaise with the appropriate medical professional if an expert assessment was needed. For further information regarding Wills and LPAs please contact Matt Kelly on 01283 214231 or at m.kelly@timms-law.com.
