By Christine Thornley, an expert tax, trusts and estate lawyer at Irwin Mitchell

Having a brain injury inevitably leads to many challenges in life, not least because it isn’t always immediately obvious to new people that there is a brain injury.  

We often find that various assumptions are made, both by those with a brain injury, and by their families and loved ones, especially around what can and cannot be done from a legal point of view. 

This article looks the importance of getting those legal affairs in order.

What legal documents should I be thinking about when I have a brain injury?

Everybody, whether they have a brain injury or not, should think about making a Will and Lasting Powers of Attorney (LPA) but this is even more important when someone has a brain injury.

A Will deals with the distribution of assets on death and LPAs ensure that there is someone you trust to make decision about your finances and health if you can’t make those decisions yourself.

Is it possible to make a Will and LPA when you have a brain injury?

It very much depends on the injury and the impact that it has had.

To make a Will you have to have testamentary capacity. Testamentary capacity is a very complicated area of law and is judged on a case by case basis. 

In very simple terms, if a person understands the nature of making a Will and its effects, understands the extent of their estate, can appreciate any claims of those who might expect to benefit from their estate and, they do not have an illness which influences them to make bequests they would not otherwise have made, they are deemed to have the capacity to make a Will.

To make a LPA, the person needs to have the information relevant to making that document, retain that information and use that information to weigh it up and arrive at the decision to make an LPA.

The tests for capacity are slightly different for a Will and LPA but having a brain injury doesn't automatically mean that a person lacks capacity. Capacity is decided on a case by case basis, at that particular time, based on the decision being made.

Having a brain injury doesn't automatically mean that a person doesn't have capacity however, it's not always easy to determine and, in these instances, it's essential to ask a medical practitioner for their professional view.  

In any event, part of the LPA process involves a capacity assessment and, where there's even a fraction of doubt, especially where someone has a brain injury, a medical specialist should be asked for their view.

How important is a medical opinion? Is it going to cost me a lot?

A Will and/or LPA can be challenged if the person who made it did not have the necessary capacity at the time and this could lead to a Will or LPA being declared invalid. 

A challenge in relation to an LPA could lead to the document being declared invalid and the person in question being left with no one able to make decisions for them while an application to the Court of Protection is being made. This could be very stressful for all involved, not to mention incredibly costly if it were contested.

A claim that a Will was invalid for lack of capacity would only be made once the person had died. If this happened historic medical records would have to be used to determine capacity and it's much more difficult than dealing with this when the Will is being made. Any challenge against a Will can also be incredibly expensive.

Do I need to tell my solicitor about my brain injury?

Yes. The more information you can give to your solicitor, the better advice they can give you.

Questions of capacity are often raised once someone has passed away or once they've lost capacity and then they're much harder to deal with. Ascertaining capacity at a particular time in the past can be incredibly hard.

If you let your solicitor know about your brain injury they'll be able to put all the possible protection mechanisms in place to ensure, as much as possible, that your documents won’t be challenged and, if they are, there's as much evidence as possible, generated at the relevant time, to prevent your documents being declared invalid.

This might involve a slightly longer process with the need to obtain medical reports but it will be much better in the long run than not raising it at all.

Find out more about Irwin Mitchell's expertise in helping people plan for the future at our dedicated Wills, Trusts and Estates section.