Dementia creates serious problems, no doubt. Among them is the compelling issue of who will make decisions for a person suffering from dementia, and who has the right to appoint such a decision-maker?  What are the spouse’s rights? How about the children, individually? More importantly, what are the rights of the person suffering from dementia?

Dementia Does Not Mean Automatic Incapacity

Prevent challenges to legal documents arising from dementia

Prevent challenges to legal documents arising from dementia

A diagnosis of dementia does not mean that the patient automatically lacks the ability to make decisions. Dementia is a progressive disease.  It gets worse with time.  A person with dementia may start out perfectly fine, with minor issues.  Over time, they may lose the ability to make financial decisions, but be capable in other areas.  Legally, such a person retains the right to make their own decisions until a court determines otherwise., a diagnosis of dementia should voluntarily energize the patient and the family to institute the legal arrangements which will be needed in the future. This will include the preparation of a Last Will and Testament, Power of Attorney and Living Will as needed.

Dementia and the Ability to Sign Legal Documents

Can a person, diagnosed with dementia, sign a Power of Attorney, Last Will and Living Will? The progressive nature of dementia, combined with the purpose of each document, can result in a person incapacitated for one document, but not another. However, for these types of documents, as opposed to a business contract, there is a relatively low level of capacity required.

Dementia and the Last Will and Testament

Certainly, incapacity is one of the arguments used by those attacking the probate of a Last Will and Testament. However, in many states, there are three requirements of the person making the Will: (1) that they know the objects of their bounty (beneficiaries); (2) they know the extent and nature of their holdings; and (3) they are able to form a reasonable plan for the disposition of their assets.  Many times there is a rebuttable presumption at law that a person has the capacity to sign a Will.  A prudent person or attorney will be sure to obtain a letter or affidavit from a doctor stating that the testator has capacity to sign a Last Will. This document should be  dated close to the time of the execution of the Will. If it is the doctor’s opinion that the patient does not have capacity to sign a Will, then there is nothing which should be done.  Either a prior Will or the state intestacy statute will control when the dementia patient dies.

Dementia and the Durable Power of Attorney  

The Durable Power of Attorney allows one to appoint a person or firm to act as his or her agent in financial matters. In the case of a person diagnosed with dementia, the power should become effective upon signing.  So called, “Springing Powers of Attorney”, which only activate if two physicians find the signer to be incapacitated, will create an unnecessary level of stress and delay for the agent, who must get two physicians to examine and issue affidavits so that banks and other financial institutions will allow the agent to act.  Given the bureaucratic nature of many banks today, it will be extremely difficult for the agent to be recognized as having Power of Attorney under a Springing Power of Attorney.

The capacity to sign a Power of Attorney is the same required to sign a simple contract.  The signer must understand (1) that someone, called an “agent” or “Attorney-in-Fact”,  will have the authority to control all of their financial matters, (2) what their financial matters are, and (3) how an agent can exercise their authority. Some have said that this level of capacity is less than that required to sign a Will.

Again, a wise person will get that letter from a physician stating that the dementia patient has the capacity to sign a Power of Attorney, beforehand. If it is the physician’s opinion that the patient lacks capacity, then a guardianship action should be filed as soon as possible.

Dementia and the Living Will  

A Living Will states a patient’s wishes for healthcare choices in the event that he or she cannot make their own decisions.  It is possible that a dementia patient will reach the stage where they cannot understand the nature of their condition and the acceptability of treatment being offered.  Therefore, it is very important that a document be written which states the conditions and treatment they find to be unacceptable.  The only question is, does the dementia patient have the capacity to create and sign such a document at the time it is prepared?

Because a Living Will requires a person to understand medical conditions and treatment, as well as the consequences of their choices, a higher level of capacity is required than for a Will or Power of Attorney. Some have argued that the higher standard required for signing a business contract should be applied.  Others argue that the level of capacity should be the same as required for the informed consent of medical procedures.

In either case, the level of capacity for signing a Living Will is fairly high, more so than required for a Will or Power of Attorney.

If there is a lack of capacity such that a Living Will cannot be signed, many states have laws indicating who the decision maker will be.  Many times, it is the spouse, then a child.  In the event that there is more than one child, the doctors may ask that one child be appointed as the point person. If there is no one to make decisions, the hospital may have to go to court on an emergent basis to appoint a medical guardian.

Prepare Now

It is essential that these legal documents are prepared early enough so that there are no problems in their execution or use. Waiting, especially when the issue of dementia arises, could interfere with the ability of the person or the family from gaining the legal authority required to help the dementia patient in the later stages of the disease. Capacity is an issue we are all going to hear more about in the coming years and decades.