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Many elderly people are affected by dementia. When people suffer from dementia, there are several stages of cognitive impairment associated with it. In order to determine if that individual can sign legal documents, everyone involved must first understand what stage of dementia they have. You cannot deem someone incompetent if they are alert and oriented to time, date and place and are aware of everything going on. This would mean that are most likely in the early stages of dementia or could be suffering from another illness. Many people wait until after the dementia diagnosis to do their estate planning and unfortunately, it may be too late at that point as the disease tends to progress quickly.
If your elderly loved one has been diagnosed with dementia and they want to make changes to their will, ask them some questions to determine if they are mentally competent. You may ask them to name multiple family members or to describe their current assets. Most importantly, ask them why they want to make the changes to their will. By law, the person signing the will must have an understanding of the implications of what is being signed and why. This is called “testamentary capacity”. If they can’t answer basic questions or can’t clearly articulate why they wish to amend their will, then any will new or amended may be deemed invalid. However, if they can still rationally explain their intent and are aware of the reasons why, the will or changes to the will can implemented. One way to avoid this is to have a physician sign a letter of competency. A physician can determine what stage of dementia they are in and if they are still cognizant and competent to handle their affairs. Having this letter at the time that the will is executed will avoid any question as to the individual’s capacity to sign the will or any other legal document.
In order to be deemed mentally incompetent, the following must be proven; you are unable to understand your current financial holdings, you can’t remember your relative’s names, or you don’t recall what your current or proposed will is for and/or who you have named in your will. If a physician has deemed the individual incompetent, the estate will go through probate court unless there is a durable power of attorney in place, healthcare directive, and or trust in place prior to the dementia diagnosis. If none of these are in place, the courts will assign a guardian or conservator for the estate.
Often, disgruntled family members will contest a will on the basis of mental incapacity at the time of signing of a will or its amendment. The letter of competency will help avoid this as well as having your attorney ask you a series of questions recorded on video at the signing of the will to further prove your competency and verify that it is you in fact signing the will.
Wills, power of attorney and healthcare directives are the more common legal documents associated with senior care where competence is questioned. While these are important documents, there are numerous other documents or contracts that people enter into at any stage of life such as mortgage paperwork, car loans or investments. These contracts are also only valid if the person was competent at the time of signing.
Ultimately, the way to avoid these issues is to have your affairs in order while you can. If you have created a will, it’s important to review and update your will, power of attorney and advance directives at least once a year or if a life event occurs. If you are an adult child or grandchild, you should check in with your parent or grandparent regularly and be aware of telltale signs of forgetfulness or unusual behavior. You may be able to ensure that your parent or grandparent’s wishes are followed before it is too late.
