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How Mental Capacity Impacts Estate Planning For An Alzheimer’s Patient

World Alzheimer’s Day is September 21st. Have you heard of it? It is an international campaign to both raise awareness of Alzheimer’s disease and to challenge the stigma surrounding dementia.

The stigma surrounding dementia can often result in the first symptoms of early Alzheimer’s. For instance, a person’s decreased executive functioning and disorganization may end up being politely dismissed as a mere side effect of the aging process. It may not be until the person exhibits advanced signs and symptoms that his or her family members seek treatment and receive the diagnosis of Alzheimer’s. 

An unfortunate consequence of this may be that by the time the person presents to an estate planning attorney, they are considered to be legally incapacitated. The legal standards for capacity generally include an orientation to self and family members, as well as, an understanding of the composition of their estate, the legal actions they are taking, and possible consequences thereof. 

If an Alzheimer’s patient does not meet these standards, they cannot legally execute estate planning documents such as: a durable power of attorney for financial or health care matters, living will, advance directives, a will, or a trust. It may be necessary for a family to petition the court to appoint a guardian for the Alzheimer’s patient to oversee medical decision making and a conservator to oversee financial decision making.

While the guardian and conservator are put in place to protect the interests of the Alzheimer’s patient, this may still deny the patient the opportunity to articulate his or her wishes in these regards, and have important planning conversations with family members, who will be beside the patient on his or her journey.

When the Alzheimer’s patient meets the capacity standards, it can be best to execute documents as soon as possible to decrease the risk of another family member challenging the legal documents in the future on the grounds of lack of capacity at the time of execution. Medical records created near the time of execution are often used to analyze capacity at the time of signing.

 Receiving an Alzheimer’s diagnosis can be a daunting time for the patient and his or her family, but it remains important to seek out legal help to put important protections in place. Our office remains committed to assisting our clients and their families with navigating legal documents and capacity issues. Contact us today to set up an appointment time.