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Posts Tagged ‘Testamentary Capacity’

Many people are affected by dementia and/or Alzheimer’s disease, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. Is it too late? Maybe not. If you or a loved one has dementia and/or Alzheimer’s disease, it may not be too late to sign a Will or other estate planning documents, but certain criteria must be met to ensure that the documents are valid.

In order for a Will to be valid, the person signing (testator) must have “testamentary capacity,” which generally means he or she understands the implications of what is being signed at the time of signing. It is not enough that they can still physically sign documents! They need to have a certain level of understanding regarding each document.

An individual is considered to have testamentary capacity to execute a valid Will if the following criteria are met:
• You understand the nature and extent of your property, which means you know what you own and how much of it.
• You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
• You understand what a Will is and how it disposes of property.
• You understand how all these things relate to each other and come together to form a plan.

Family members may contest the Will believe the testator lacked mental capacity to sign it and are unhappy with its provisions. 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).

Dementia and Alzheimer’s disease have various stages, some in which the testator may be legally competent to make changes to an estate plan and others where he or she is not. As soon as there is diagnosis of dementia and/or Alzheimer’s disease, it is wise to see an elder law attorney get your affairs in order. Elder law attorneys have more experience in these types of estate planning matters than most general estate planning attorneys, and can also provide guidance regarding other matters for the future, such as asset protection in light of anticipated long term care expenses. In addition, if this window of capacity has closed, an experienced elder law attorney may be able to provide other solutions through guardianship, conservatorship, or other intervention.