Elderly people are sometimes affected by dementia. In fact, millions suffer from dementia to some degree. Its onset age varies widely and debilitating dementia may not occur at all. However, many elderly people do not have their estate planning affairs in order. We believe that has more to do with procrastination than anything else. However, common sense says to get your affairs thought through and put in writing before the potential symptoms begin to impair judgement.
But here’s the good news. If you or a loved one has dementia, it may not be too late to sign a will or other estate planning documents. To be clear, certain criteria must be met to ensure that the signer is mentally competent to sign; but the degree of competency required varies depending on the type of document being signed or attested to. Just because someone may have a form of mental illness or disease, does not mean that they automatically lack the required mental capacity.
A person must have “Testamentary capacity” in order to sign a valid will. This means that the person must understand the implications of what is being signed. As long as they have periods of lucidity, one may still be competent to sign a will.
Testamentary capacity and mental competency to sign a will is evident by these criteria: One understands the nature and extent of their property, meaning that they know what they own and how much of it They recognize and understand who their relatives and descendants are, and are able to articulate who they want to inherit their property and belongings. They understand what a will is and how it disposes of property. And, they have an understanding of how all these things relate to each other and come together to form a plan.
Family members may contest the will if they are unhappy with the distributions and believe the signer lacked the required mental capacity to sign it. If a will is found to be invalid, a prior will may be reinstated or the estate may pass through the state’s intestacy laws, as if no will existed.
To prevent a will from being contested, an elder law attorney should take precautions to ensure that the person signing the will has the requisite capacity to sign it. In cases of advanced degrees of dementia, an attorney might request a physician’s assessment of the signer. In all cases, the attorney should discuss the terms of the will with the signer and ask them questions while probing answers to assess competency. In addition, the attorney will also have two disinterested witnesses and a notary to verify the signing of the will.