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The Heritage Law Center, LLC Blog

Can a Person with Dementia Do Their Estate Planning?

POSTED ON: October 5, 2023

As soon as a person is diagnosed with dementia, they should do their estate planning if they haven’t done it already. It’s important to make sure they have the best estate planning in place to help shield family assets and make sure they can be eligible for needed care. About 5.8 million people in the United States have Alzheimer’s disease and related dementias. Research shows that most people currently living with dementia haven’t received a formal diagnosis.

According to the National Institute on Aging, “dementia is the loss of cognitive functioning—thinking, remembering, and reasoning—to such an extent that it interferes with a person’s daily life and activities.” Symptoms from Alzheimer’s disease and other kinds of dementia can vary from one person to the next. Two very common early signs of dementia are memory loss and trouble performing everyday tasks. More information about early signs of dementia can be found here.

Life with Dementia

There are different stages of dementia and people progress through these stages at various rates. A person’s ability to function with dementia depends on the stage of dementia they are in. In the early stage, a person can usually still function independently. In the middle stage, people often require some daily support. People in late-stage dementia require full-time care. In the earlier stages, how well a person is doing can depend on the time of day. For example, a person may be more functional in the morning vs. the afternoon.

How Massachusetts Defines Testamentary Capacity

A person must have the mental capacity to do their estate planning. “Testamentary capacity” is the legal term used to describe a person’s legal and mental ability to create or alter a will. Testamentary capacity requires that the person creating the document understand:

  • The nature of making the document (i.e., what a will is and what it does)
  • What they are doing by signing the document
  • Who may inherit the property whether there’s a will or not
  • The type of property and assets they own

A person must have testamentary capacity at the time they are executing a will or a trust for that document to be valid. How well they functioned the day before or the day after the signing isn’t applicable. What matters is that they have the testamentary capacity in the moment they are signing the document.

Standards Vary for Different Estate Planning Documents

The mental capacity, the ability of an individual to make sound decisions like creating a health care proxy, is a bit lower than the testamentary capacity needed for making a will or trust. With a health care proxy, the person with dementia is simply naming a person they trust to make decisions about their health care in the case they are unable to do so. Creating a will or a trust, however, needs a higher level of testamentary capacity since it involves how the person’s estate is to be distributed when they pass away.

Prioritize Estate Planning

The sooner a person with dementia gets their estate planning done, the better. Do it early to make sure they have the mental capacity and testamentary capacity to sign a health care proxy, durable power of attorney, will, trust, and a living will. If there’s fear that the estate planning will be contested in the future, a doctor can provide written testimony that the patient is competent to sign a legal document.

When a Persons Lacks Testamentary Capacity

If the person with dementia is deemed incapable of doing their own estate planning, the law provides a different path to help them. You can go through a court process for a guardianship or a conservatorship. This route can take a good amount of time and is costly, but it would at least provide a guardian who can make day-to-day, personal decisions about that person’s care or a conservator to handle that person’s financial matters.

Contact Our Experienced Massachusetts Estate Planning Lawyer Today!

It’s best to get the estate planning done earlier when the person with dementia has the ability to do it. We’re here to help you and your loved one put the best estate plan in place for them to help protect their assets and make sure they can get the health care coverage they need when they need it. Contact us today for a free, no-obligation consultation.