Estate planning after a dementia diagnosis: legal mental capacity

| Jul 30, 2020 | Estate Planning |

You have probably heard the term “being of sound mind” in conjunction with a will, but that phrase does not automatically mean a family member with a dementia diagnosis cannot participate in estate planning. In fact, after a dementia diagnosis, it becomes critical for your loved one to create an estate plan.

How much of that your family member can do depends on a number of factors described by California probate law.

Criteria for testamentary capacity

Your family member has to meet some conditions to prove testamentary capacity. This includes understanding how the decision affects his or her rights, duties and responsibilities, as well as what the consequences of the decision are and who they will affect. Testamentary capacity also requires the person to understand the risks and benefits of the decisions and recognize potential alternatives. Finally, anyone making a legal decision such as creating a will must be able to effectively communicate his or her decisions in some way.

Proof of mental function problems

State law says that the court needs to see evidence of unsound mind or incapacity before ruling that someone cannot make legal decisions. Such evidence has to include impairment of at least one mental function that makes the person unable to understand the potential outcomes of his or her actions. These include the inability to concentrate, pay attention, understand and communicate, remember events correctly and recognize friends and family. Other impairments involve:

  • Extremely scattered thoughts
  • Hallucinations or delusions
  • Low alertness or consciousness
  • Persistent anger, anxiety, panic, fear or other emotions that do not seem relevant to the person’s current situation
  • Lack of awareness regarding where, when or who the person is

For many people with dementia, the symptoms are not constant or consistent. Your family member may have periods when he or she has clear thoughts and is able to execute a will or create a trust.

Medical advice

The Alzheimer’s Association suggests seeking medical advice before discussing estate planning. A medical professional can provide informed advice regarding your loved one’s ability to make legal decisions, and may also be willing to provide expert testimony in court of mental function abilities or impairments.

Even if you do not doubt your family member’s testamentary capacity, having proof may decrease the likelihood that another family member may challenge the documents later.