Diagnosis of dementia is extremely difficult to come to terms with, both for the person who is diagnosed and their families.

Sadly, as the population in the UK is ageing and the dementia risk is understood to increase with age, these diagnoses are likely to become more common.

In Scotland alone over 90,000 people are currently living with dementia, a term used to refer to a variety of illnesses and conditions causing an impairment of brain function and a decline in intellectual functioning which can result in personality changes and behaviour problems.

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While these situations are often upsetting and difficult to handle, both for the person with dementia and their loved ones, those who have planned ahead will be able to steer an easier course through the setbacks. For this reason, it is important to deal with the legal implications as soon as possible after diagnosis.

Plans made in advance will spare loved ones, who may already be in emotional turmoil, having to deal with the stress of many of the practicalities involved when a person loses their mental capacity. Key issues to take care of are putting in place a well drafted will and power of attorney, according to Susanne Batchelor of Scottish law firm Brodies. “As a society we are living longer but we are not always living with the same quality of life, so these challenges are going to come up more and more,” she said. “When there is a diagnosis of some form of dementia the advice is always to plan ahead. Once you lose your legal capacity you are not able to choose what you want to do so it is good to get your house in order in advance. The planning involves making sure you are getting the necessary paperwork in place to make it easier for your family to deal with.

“It is always very hard and people don’t like to think about these things - but it is essential to plan ahead. When the diagnosis is made the person probably still has the ability and legal capacity to make decisions but that can change very quickly.”

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First, it is important to make sure there is a will, otherwise the person’s estate may not pass as he or she would have wanted. “If you don’t have a will the rules in Scotland are quite complicated so it can be quite costly if you don’t have everything in place,” said Susanne. “The Scottish Government is currently looking at changing the law regarding the situation where you don’t have a will but what is crucial is that people decide themselves how their assets are going to be passed on and think about inheritance tax, care costs and who they want to be executors.

“In modern society we have a lot of blended families including second marriages.

“In these cases, people really need to think about what the implications are, as they might want to make their second spouse comfortable but also pass their assets on to their children from a previous marriage. They need to structure the will properly to provide for these situations in the most tax efficient way.”

It is a common misconception that partners or children can automatically act on someone’s behalf should they lose capacity but this is simply not the case - which is why it is very important to have a power of attorney put in place.

There are two types of power of attorney: continuing and welfare.

A continuing power of attorney allows someone else to look after your financial assets. A welfare power of attorney allows someone to make decisions about your personal care. You can make a single power of attorney (continuing or welfare) or a combined continuing and welfare power of attorney.

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“If people have specific wishes about their future care they can give guidance about what they want to happen,” pointed out Susanne. “That is helpful for families as they will not only have to deal with their emotions but will also have the other aspects of their own lives to deal with, including work pressures and young children for example. It may also be that the family has different views about what type of care there should be.”

If a power of attorney is not in place it can be difficult to deal with the person’s assets. “In cases like this a guardian can be appointed by the courts but this is costly and time consuming when things are already extremely difficult for the family,” said Susanne. “That’s something that can be avoided by having power of attorney in place beforehand.”

The power of attorney should be well drafted to plan for inheritance tax. For example, an estate can be reduced by gifting but that is only possible if special provisions are made so that the person appointed power of attorney is able to do that.

These are significant and often emotional issues but dealing with them will make life easier for everyone in the long run. “The ostrich approach is no good - it is important to get good advice,” said Susanne. “Some people assume that it will be an expensive process but these documents are so important and have so many advantages, including saving the expense of any complications if the documentation doesn’t exist. “Our clients often find it very liberating when they have chosen what they want to do and have left everything in the best way possible for their beneficiaries, taking that burden off them and also avoiding any conflict or uncertainty about the situation.”

For more information please visit Brodies family law team at www.brodies.com