Debunking Myths: Wills & Power of Attorney for Neurodivergents

Challenging Misconceptions: Wills and Lasting Power of Attorney for Neurodivergent Individuals.

Neurodiversity Celebration Week (17 to 23 March 2025) is a time to recognise and empower neurodivergent individuals, challenging outdated stereotypes, and advocating for inclusivity. 

Unfortunately, misconceptions about mental capacity, legal rights, and decision-making ability, continue to create barriers for neurodivergent people when it comes to the preparation of Wills and Lasting Power of Attorney (LPA).

This article explores key challenges and misconceptions surrounding Wills and LPA for neurodivergent individuals, highlighting how we, as Solicitors, can create a more inclusive and accessible legal system.

At a glance.

1. A neurodivergent person should not be denied the ability to make a Will or LPA based on a diagnosis alone.
2. Neurodivergent individuals may need support in decision-making, but that doesn’t mean that they should have decisions made for them.
3. The Mental Capacity Act 2005 states that a person is presumed to have capacity unless it is proven otherwise.
4. The best choice for Executors and Attorneys isn’t always a family member.
5. Client meetings should be flexible, offering options like virtual consultations, written communications, or extended appointments.

Misconceptions about Mental Capacity.

Many people, including professionals and family members, assume that neurodivergent individuals automatically lack capacity to make decisions regarding their Will or LPA. This is often due to misunderstandings about conditions such as:

• Autism (assuming a lack of comprehension or emotional insight).
• ADHD (assuming impulsivity means poor decision-making).
• Dyslexia/Dyspraxia (assuming difficulty with written communication equates to a lack of understanding).
• Tourette’s Syndrome (assuming involuntary movements or vocal tics affect cognitive ability).

Reality:

• Capacity is decision-specific under the Mental Capacity Act 2005. A person may be able to make some decisions but need support with others.
• A neurodivergent person should not be denied the ability to make a Will or LPA based on a diagnosis alone—capacity must be assessed fairly and individually.

Over protectiveness from family or professionals.

Family members or professionals may act overprotectively, assuming neurodivergent individuals cannot handle their own affairs. This leads to:

• Unnecessary LPAs where decision-making is taken away prematurely.
• Families pressuring a neurodivergent individual to appoint an attorney without full understanding or choice.

Reality:

• Neurodivergent individuals may need support in decision-making, but that doesn’t mean they should have decisions made for them.
• The Mental Capacity Act 2005 promotes supported decision-making, where people receive help to understand choices without losing their autonomy.

The risk of legal challenges and discrimination. 

Neurodivergent individuals may face more scrutiny when creating a Will or LPA, leading to:

• Increased likelihood of claims of undue influence or lack of capacity.
• Bias from professionals who assume that the individual requires a medical evaluation to assess capacity.
• Difficulty getting reasonable adjustments (e.g. extra time, or alternative communication methods).

Reality:

• The law states that a person is presumed to have capacity unless proven otherwise.
• If extra assessments are requested, they must be justified and necessary, and not based on stereotypes.

The challenge of Executor and Attorney selection.

Choosing the right individuals as your Executor of a Will or Attorney under LPA is crucial, but neurodivergent individuals may face additional barriers:

• Lack of a strong support network (some neurodivergent individuals may have small or strained family connections).
• Risk of financial abuse (some may be more vulnerable to coercion if they trust too easily).
• Over reliance on professional attorneys (which can be costly and impersonal).

Reality:

• The best choice isn’t always a family member. Trusted friends, advocates, or legal professionals, can step in.
• Legal safeguards (e.g. appointing multiple attorneys or professional oversight) can reduce risks of abuse.
• Creating a Statement of Wishes alongside a Will or LPA can clarify intentions and help Executors/Attorneys act in accordance with your preferences.

Accessibility barriers in the legal process.

The traditional legal process for Wills and LPAs often isn’t designed with neurodivergent individuals in mind:

• Complicated language and legal terminology can be overwhelming.
• Sensory challenges (e.g. bright office lights, noisy environments) can make meetings stressful.
• Rigid appointment structures may not accommodate fluctuating Executive Function (EF) levels.

Solutions:

• Meetings should be flexible—offering options like virtual consultations, written communication, or extended appointments.
• Sensory-friendly offices and pre-meeting preparation materials can help reduce anxiety.

Conclusion.

Neurodivergent individuals have the right to autonomy and dignity in making decisions about their Will and LPA—professionals and families must ensure they are supported, not restricted.