Estate Planning for Clients with Dementia

10/10/2012

Life expectancy is continually on the rise. As life spans increase, estate planning attorneys confront the growing challenge of representing older clients who may have started to suffer capacity-related health issues such as Alzheimer’s disease. So how is mental capacity determined with regards to legal matters? 

When a client initially meets with an attorney, the attorney must determine whether or not the client has the mental capacity necessary to reasonably articulate their wishes concerning their legal affairs. Unfortunately, competence is not a black and white determination. 

In general, the requirements of testamentary capacity are fairly simple. The testator must only meet this minimal test at the moment the estate planning documents are executed. So, even if the testator does not recall singing the document the day following execution, it does not invalidate the document if he or she understood it when signing.

The mere existence of the onset of dementia does not preclude the signing of estate planning documents, provided that the necessary criteria for mental capacity are met. However, the drafting or revisions to current estate planning documents should be considered in the early stages of dementia. 

Doctors and other medical personnel cannot personally make a determination as to whether or not an individual has testamentary capacity, since only a judge has the authority to render a person incompetent. However, they can provide a professional evaluation that will both help the attorney make this decision and provide significant evidence in the event of a subsequent incapacity challenge.