Modern Estate Planning Blog

Millions of individuals are affected by dementia in their lifetime. Unfortunately, it is usually after a medical crisis like dementia hits that many families begin to think about estate planning.

What people don’t realize, however, is that it may be “too late” under the law to to make a plan after dementia strikes.  This is usually the case when dementia is in an advanced state. In order for legal documents to be valid in California, the person signing them must have “testamentary capacity.” This means that he or she must fully understand the implications of what is being signed.

Does that mean that your loved one can no longer sign legal documents after a diagnosis of dementia? Not necessarily.  Dementia is a progressive condition and mental capacity can be fluid in earlier stages.  Your loved one may still be considered mentally competent to sign legal documents, even with a diagnosis of dementia if he or she:

• Can understand the nature and extent of their property
• Can remember their relatives and descendants
• Is able to articulate who should inherit their property
• Can understand what they are signing
• Can understand how all these things relate and come together to form a plan

In some instances, a verification from a physician about the individual’s competence may be required and the ability of whether a person with dementia can sign legal documents will rest in the doctor’s hands.

If the physician determines that your loved one can not execute legal documents, the family must then turn to the court system and likely the process of Conservatorship in order to take over control of the senior’s affairs in the absence of a current Trust, Power of Attorney or Health Care Directive.

Whether your loved one can sign legal documents following a diagnosis of dementia really depends on his or her individual battle with the disease.  Talk to a Folsom estate and elder lawyer, as well as your loved one’s doctor for an idea of what your options may be.  Be sure to go through all the proper channels, as your loved one’s legal documents could be contested later on if you have them quickly signed while there is still a question of mental capacity out there.

If you need assistance getting started and evaluating your loved one’s situation, we invite you to contact our Folsom estate and elder law attorneys at (916) 241-9661 to schedule a consultation.

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