Happy May! The month of Elder Law awareness. To begin the month, we wanted to discuss legal capacity and dementia. We sometimes hear from clients or their loved ones that they believe that a diagnosis of dementia means that the person cannot execute estate planning documents. This is not necessarily true.
What Is Legal Capacity To Sign Documents?
The determination of whether someone has the legal capacity to execute estate planning documents is based on several factors, including the person’s estate planning attorney’s assessment of the capabilities.
Legal capacity refers to a person’s ability to make informed and voluntary decisions, including the ability to enter into legal agreements.
In the context of estate planning, legal capacity is a crucial factor in determining whether a person can sign estate planning documents, such as a Last Will and Testament, a Trust, a Power of Attorney, and an Advance Healthcare Directive.
When a person becomes incapacitated, they may lose their legal capacity, which can affect their ability to manage their affairs and make decisions about their property and assets.
What Is Dementia?
Dementia is one of the most common causes of incapacity among older adults. Dementia is a progressive brain disease that affects a person’s cognitive function, including their ability to think, reason, and remember. As the disease progresses, it can become increasingly difficult for a person with dementia to manage their finances, make healthcare decisions, and carry out daily activities.
How Does Dementia Affect Legal Capacity?
The legal capacity to sign estate planning documents is a critical issue for people with dementia. It is important to remember that a diagnosis of dementia does not mean that someone lacks legal capacity.
As the disease progresses, however, a person with dementia may become unable to make sound decisions about their estate plan, including who should inherit their assets and who should make decisions about their healthcare.
In such cases, a person with dementia may no longer have the legal capacity to sign estate planning documents, which can create significant challenges for their family members and loved ones.
What Is The Standard for Legal Capacity in Connecticut?
In Connecticut, the standard for legal capacity to sign estate planning documents provides that any person who is 18 years of age or older, of sound mind, and not under undue influence or duress may execute a will, trust, or other estate planning document.
There have been several cases that have further defined and interpreted this standard in Connecticut.
Related Post: What Is Sundowning In Dementia Patients?
Who Determines Legal Capacity?
The courts have noted that lawyers have a duty to assess their clients’ legal capacity when preparing estate planning documents, and that the assessment should be made in a “thorough and thoughtful manner.”
Further, they have held that the lawyer’s assessment is an important factor to consider in evaluating the decedent’s capacity.
Dementia Symptoms, What to Watch for, and Do Next!!
If you are concerned about legal capacity or you or a loved one has received a diagnosis of dementia or observed any memory loss or confusion, it is important to seek legal advice promptly. An estate planning attorney can evaluate the person’s legal capacity to sign estate planning documents and recommend appropriate legal steps to protect interests, such as creating a Trust and power of attorney.
In conclusion, legal capacity is a critical issue in estate planning, particularly for people with dementia. With the help of an attorney, you can take the necessary steps to protect your loved one’s interests and ensure that their estate plan reflects their wishes and best interests.
If you are concerned about the legal capacity of yourself or a loved one with dementia, call our office to schedule an appointment to speak with one of our experienced estate planning attorneys.
Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice and is for general informational purposes only.
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Joan Reed Wilson Esq. – Managing Partner
Practices in the areas of estate planning, elder law, Medicaid planning, conservatorships, probate and trust administration, and real estate. Admitted to practice in the States of Connecticut and California, she is the President of the CT Chapter of the National Academy of Elder Law Attorneys (NAELA), an active member of the Elder Law Section of the Connecticut Bar Association, accredited with the PLAN of CT for Pooled Trusts, with the Veteran’s Administration to assist clients with obtaining Aid & Attendance benefits for long-term care needs and with the Agency on Aging’s CareLink Network.
