A diagnosis of dementia, a category of diseases affecting memory and thinking that includes Alzheimer’s disease, can feel overwhelming and upsetting. You might worry that you will lose control over your life and ability to make your own decisions. Fortunately, receiving a diagnosis of dementia or Alzheimer’s does not mean that you cannot execute legal documents or make decisions about plans for your future finances and health care.
People with dementia can execute legal documents to plan for their futures when they have the mental state — or capacity — to do so. Capacity refers to your ability to understand the contents of a legal document, such as a will, and know the consequences of executing it. If you know who your family is, understand your assets, and comprehend your will, you can execute a valid will and plan for the distribution of your estate after your death, provided you understand what you are signing and its effect on your life. When working with an attorney to prepare for your future and address the challenges associated with aging, you will likely come across the term “incapacitated.”
Incapacitated Definition
Someone who is incapacitated cannot make personal decisions or understand legal documents. An incapacitated person requires a surrogate decision-maker, such as an agent under a health care power of attorney or a guardian.
When a person has the mental state to execute a valid legal document, such as a will or trust, this is known as having capacity. Capacity is the opposite of incapacity. If a court finds that a person signed a will while incapacitated, the court can invalidate the will.
(Note that while certain states use the term “incapacity,” others refer to this same concept as “incompetence.”)
Power of Attorney
A power of attorney is a legal document that allows you to appoint someone else to make decisions for you.
- A health care power of attorney allows you to select someone to make health care decisions for you. You can also give your agent instructions for the type of care you would like to receive, including end-of-life care.
- With a power of attorney for property, you can give someone the authority to handle your financial affairs, such as paying your bills and managing your accounts.
Creating a valid power of attorney requires you to have the mental capacity to understand the contents of the power of attorney. If you become incapacitated, a power of attorney allows you to preserve your autonomy, as you have selected a surrogate decision-maker to make decisions according to your wishes.
Depending on how you and your attorney structure your power of attorney, it could take effect only after you become incapacitated, once a physician determines that you cannot make decisions for yourself. However, many choose to allow trusted individuals authority as soon as they create a power of attorney, as this avoids having to wait for a physician’s determination of incapacity.
The court may appoint a guardian for those who become incapacitated without a power of attorney.
Wills and Estate Planning
Making a will or any estate planning document that needs your signature, such as a trust or transfer on death deed, requires you to have capacity. You must understand what you are signing.
A will is only valid if you had the required mental capacity when you signed it. The court can invalidate your will if it finds that you were incapacitated when you signed it.
For people with cognitive difficulties impacting capacity, it is possible for capacity to fluctuate. A person with dementia may cycle through periods of lucidity and incapacity.
Consult With an Estate Planner
Dementia, a disease that can affect capacity, impacts approximately 10 percent of adults 65 and older, according to Columbia University.
By working with an estate planner, you can help prevent others from challenging the validity of your will after you pass and ensure that you have a valid will in place. Schedule a meeting with one of our attorneys to discuss an estate plan following a dementia diagnosis.