Millions of people are affected by dementia, which can be a particularly cruel disease, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to sign a will or other documents, but certain criteria must be met to ensure that the signer is mentally competent. If a person has no estate planning documents (and especially if they do not have documents sufficient to allow their finances to be managed or medical decisions made) it is often necessary to have the person conserved so a court can appoint a person to be responsible for those matters.
In order for a will to be valid, the person signing must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Generally, the level of capacity a person needs to have to sign a Will, is one of the lower levels of capacity defined in the law. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.
Generally, you are considered mentally competent to sign a will if the following criteria are met:
- You understand the nature and extent of your property.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property. (This is referred to as knowing the “natural objects of your bounty”.)
- You understand what a will is and how it disposes of property.
Family members may contest the will if they are unhappy with the distributions and believe you lacked 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).
If you or a family member may be suffering from a disease that causes cognitive impairment, now would be a good time to have your estate plan reviewed for appropriateness, or if you do not have estate planning documents to engage counsel to prepare them for you.