Communication, capacity and estate planning
By Elizabeth Potter, trainee Solicitor and Nicola Hawkins, Solicitor, Tax, Trusts and Estates Team.
Bruce Willis has millions of fans worldwide, having starred in numerous successful Hollywood films such as Die Hard, Pulp Fiction and The Sixth Sense. Many of us will have been sad to learn that Willis has retired from his acting career after his family announced that he has recently been “diagnosed with aphasia”. But what does this really mean, and can someone with a neurological symptom such as aphasia still have capacity to make a will or a Lasting Power of Attorney (LPA)?
What is aphasia?
Aphasia is a language disorder that affects a person’s ability to communicate. Often, aphasia is a symptom that someone may experience following a stroke or a brain injury. This is known as “acquired” aphasia. For example, the wife of Chris Ellison, star of the TV show The Bill, shared this weekend that he has aphasia following a stroke in 2020. This would be an example of acquired aphasia.
There is also a condition called Primary Progressive Aphasia (PPA) which is a form of dementia that eventually progresses to affect other functions of the brain, such as memory.
Can someone with neurological symptoms, such as Bruce Willis’ aphasia, still make a Will or an LPA?
As Bruce Willis’ family did not specify that he had suffered a stroke or other acute medical event, some commentators have speculated that he may have PPA. While the family’s statement mentioned that Willis’ diagnosis is “impacting his cognitive abilities”, aphasia is primarily a language disorder and someone with acquired aphasia usually retains other cognitive functions such as decision-making. It is important to remember that there are many different types of aphasia.
What is the difference between a will and an LPA?
A will is a legal document that allows an individual (known as a testator) to state what they want to happen to their property (also known as their estate) after their death, and who they want to deal with (administer) their estate for them.
An LPA is a legal document that allows an individual (known as a donor) to nominate attorney(s) to deal with their property, finances and/or health affairs while they are still alive, when they no longer have capacity to do so themselves.
Capacity
In legal terminology, if someone has capacity this means that they are able to make their own decisions.
In England and Wales, the starting point is always to presume that someone has capacity to decide for themselves, unless proven otherwise.
Capacity is decision-specific, meaning that someone may have the capacity to make day-to-day decisions, but they find it harder to make life-altering decisions. Capacity can also fluctuate and someone who lacks capacity to make a certain decision at one moment in time may be able to do so at a different time and under different conditions.
The specific requirements for capacity to make a will and an LPA are slightly different.
To make an LPA, the donor must understand the effect of the document, retain the information that is relevant to making the document and be able to weigh up the pros and cons of doing so before going ahead. Even when the donor has an LPA in place, their attorney(s) cannot use it without the donor’s permission until the donor has lost capacity. The attorneys again have to bear in mind that capacity is decision specific so cannot assume the donor does not have capacity to make every decisions. The donor must be given every opportunity to make their own decisions and manage their own affairs if possible. This can include communicating by other means for example through picture symbols or written communication.
To make a will, the testator must be able to demonstrate they understand the following:-
- The nature of their will and the effect it will have;
- The extent of their property that they are distributing through their will; and
- The people that they would usually be expected to provide for, even if they choose not to do so.
If someone lacks capacity to make a will then their attorney cannot sign the will on their behalf. To do so the attorney must make application to the Court of Protection for a statutory will to be executed on the testators behalf.
How can someone show they have capacity if they have difficulty communicating?
Despite often negative media coverage surrounding neurological symptoms such as aphasia, someone who retains capacity but has difficulty communicating may still be able to make a will or an LPA with the right professional support.
A speech and language therapist can help someone to understand decisions and to make their wishes known. Support can be provided during capacity assessments as well as during meetings with the individual’s solicitor to discuss making an LPA, or to discuss their instructions for making a will.
For example, speech and language therapists can support individuals to use alternative methods of communication, such as using picture boards and symbols or other non-verbal techniques such as drawing and pointing. They can also simplify or modify the language that is being used to help the individual to understand it.
As in Bruce Willis’ situation, unexpected health conditions can often take us and those around us by surprise, and that’s why we would always remind individuals that the process of preparing documents such as wills and LPAs is much easier while they are in good health, and it is never too soon to put plans in place for the future. However, as discussed above we should not assume that just because someone has neurological symptoms that they no longer have capacity and someone with a diagnosis should be aware that they could still have options to put their wishes in place. However in those circumstances it will be crucial to take expert advice on how to make and implement the legal documents.
Our team has experience working in this way to support clients’ needs, and if you would like further information about anything discussed in this article, please do not hesitate to contact us.
Bruce Willis, the actor best known for his work on the Die Hard films, is to retire from the industry after being diagnosed with aphasia.
A joint statement was posted on his family’s social media accounts, explaining that Willis had been “experiencing some health issues and has recently been diagnosed with aphasia, which is impacting his cognitive abilities.
“As a result of this and with much consideration Bruce is stepping away from the career that has meant so much to him.””
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