“Our mission is to support and safeguard the will and preference of our clients” – Michael Perkins
We were contacted by a new client this week. His long-term family solicitor had refused to update his will because the client had recently been diagnosed with dementia.
The client’s first question was telling. “Why has my dementia diagnosis removed my ability to change my will?” he asked.
Decision Making Ability Is Not Diagnosis Bound
Our answer to the client was that a diagnosis of dementia does not remove your ability to update your will. The diagnosis only removes our ability to assume you have unconstrained decision-making ability. It becomes necessary to evaluate your ability to make any decision in the context of the situation or task you want to undertake.
Regarding working with a client whose decision making is in doubt, The Law Society of NSW states:
”If a client can make some but not all decisions, then they have a right to make as many decisions as possible”
Our action: evaluating decision making
We consulted with our client in a familiar environment (his home). Whilst a daughter who was a carer was present for support, she did not play an active part in the meeting but provided general support for the conversation by her presence.
The proposed update, the client’s current will, enduring power of attorney and power of enduring guardianship were all available for the meeting. We were therefore able to use these documents as the context for evaluating the client’s understanding of his situation.
Our client was able to read his current will and identify that it was not appropriate because his wife had died and he was concerned about the ex-wife of one of his sons who was engaged in divorce proceedings getting access to his money.
He was able to describe his family and assets accurately.
He was able to describe his property and confirm he wanted his children to benefit from his estate equally. With regard to the son who was getting divorced, he wanted that share of his estate safeguarded for the son.
We were able to describe the function of a simple maintenance and advancement trust for the son and his children. The other siblings would hold the fund and then pass income and capital to the son in a way that the trustees could see could benefit the son, which may be paying money directly to the children or for their benefit.
Our client discussed this as an alternative to writing cheques that could be included in matrimonial property claim if died before his son.
The core intent of our client was for his assets to follow his bloodline. That objective was supported by all his children.
The competing interests of the children were simply focused on who would receive a direct gift and who would receive a fund to be managed by siblings for the benefit of the sibling being divorced.
Supporting the will and preference of our clients
Our work in the initial meeting was focused not only on evaluating the demonstrated ability of the client but also simplifying the proposed action to a level where the client could give appropriate feedback and ask questions that clarified his understanding of the approach.
On the basis of this evidence, we agreed to update the will by using a codicil that supplemented the existing will rather than replacing it. This meant we could focus the decision making ability of our client on the change he wanted to make. This is consistent with our goal to support the will and preference of our clients.
Insights for working with clients with dementia
There are a number of valuable insights to share from this experience:
1. Take time to do justice to the ability of your client. Just the initial consultation was an hour and a half. You have to take the client at their pace through the necessary evaluation protocol. Decision making ability has to be evaluated in the context of the ability of the client, not just the decision and situation at hand. We are alert to the injustice that expediency can cause if the decision making evaluation outstrips the natural processing speed of the client. Client, supporter and attending professional alike all need to be prepared to take the time necessary to do justice to the ability of the client.
2. While decision making ability is not situation, decision or diagnosis bound, once a capacity assessment trigger is present, capacity has to be qualified on a case by case basis.
3. If a person is suffering cognitive decline, the earlier that can be recognised and brought under management the better.
4. Coping with decline rather than addressing the consequences head on just lays the groundwork for more difficult decisions later and possibly the emergence of abusive conduct.
5. Helping a person and their supporters work with a common and consistent picture of a person’s values, will and preference will usually lead to the best outcomes for the client.
Can we help you or a person for whom you are concerned?
Yes, we do house calls!
Please see the Price Guide and Project Planning template available on our website that set out the general work approach and range of medico-legal and legal costs that may apply to matters of various complexity.
Depending on the need to generate evidence to support the demonstrated ability of the client, these assignments often range between 4-15 hours with costs varying accordingly.
We are always happy to have an initial meeting to understand the scope of the expected work and provide feedback on likely costs and work approach by Zoom, Teams or face to face appointment.
Please contact us by the usual channels.
 When a client’s capacity is in doubt. NSW Law Society 2016. Page 6