Making a Will or Lasting Power of Attorney when detained under the Mental Health Act 1983

20/03/2015

It may be possible to execute a will or a lasting power of attorney even when detained under the Mental Health Act.  However, better still would be to plan in advance.

If I am detained under the Mental Health Act can I make a will or grant a lasting power of attorney?

This is another difficult question!

The real question is whether you still have the necessary capacity to execute a will or lasting power of attorney (LPA). A will directs what happens to your belongings after you die.  An LPA allows you to appoint some one else to look after your financial affairs, or to make health/welfare decisions for you, when you are unable to make such decisions for yourself (e.g. through ill health, old age etc).

The simple answer to the question is that simply being detained under the Mental Health Act does not in any sense mean that you automatically lack capacity to make decisions, including the decision to execute a will or LPA . However, it is possible that your mental illness may impact on your decision making thus rendering such decisions unsafe.

If your capacity were affected by your illness then clearly any will or LPA executed when unwell could be set aside as invalid.

So you would have to establish whether you had the necessary capacity to execute a will or LPA.  You need to be able to show that you understand the information needed to be able to execute the will or LPA, be able to retain that information, and be able to weigh up all the information and that you understand the consequences of your action. You also need to be able to communicate your decision.

There are additional specific legal tests relating to capacity to execute wills and LPAs. The test for will making was established in a case which came before the courts in 1870 but has held good ever since. You have to (1) understand the nature of the act of making a will and the effect this will have, (2) understand the extent of your assets and what will happen to these after you die, (3) appreciate the possible claims that  could arise (in terms of entitlement as a dependant or similar), and (4) you must not be subject to any disorder of mind which “poisons the will maker’s affections, perverts his sense of right, or prevents the exercise of his natural faculties”.  You would probably need to ask your responsible clinician for a view.

The more sensible approach is to plan in advance.  Whilst you are well, you should, as a matter of good practice, make appropriate arrangements for when you are unwell or indeed for what is going to happen to your property when you die.  Making a will and executing an LPA is simply part of sensible forward planning – a bit like an insurance policy, you hope you won’t need it but its there if you do.

Almost all solicitors firms, including Julie Burton Law, can offer advice in relation to wills, LPAs and other such matters, usually at (relatively) reasonable rates, so you should not hesitate to make all necessary arrangements as soon as you can. Means tested legal aid is available for those aged over 70, or who are disabled, and in certain cases involving provision by will for disabled offspring and  the appointment by will of guardians for minor children.


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