Is It Too Late to Create a Will After a Dementia Diagnosis?
By: Barry E. Haimo, Esq.
July 16, 2020
Helping a loved one plan for their legal future after a dementia diagnosis can be difficult, but it’s also incredibly important. When it comes to a problem like dementia, time is of the essence. The more time that goes by, the less time there is for that person to participate in the estate planning process — including creating a will.
Here’s the information you need to know in order to assist a person with dementia in drafting a will before it’s too late.
Can Someone With Dementia Draft a Will?
No one can tell you at what pace dementia will progress or how it can impact the lives of those you care about. When the disease is diagnosed, a person may not have their legal affairs in order at all, or they might have previously drafted a will.
Luckily, there may be time to draft a will before time runs out.
A person with a dementia diagnosis can draft a will, but only if certain standards are met and if they are deemed to understand the meaning and importance of what they are signing. In other words, they must have what is considered the “legal capacity” to make these legal decisions and understand their impact.
Fair warning: this is not a situation you want to be in. Even if you can technically win the argument that a will or trust is valid despite the individual who wrote it having dementia, it is 100% a recipe for litigation.
If you are worried that you or a loved one might be in the beginning stages of cognition issues, the best thing you can do is get your estate in order as soon as possible. Once a diagnosis has been given, things become much trickier legally speaking.
However, if dementia has already been diagnosed, there is little to do but move forward and make the best of it.
Legal Capacity in Florida
The standards of legal capacity vary from state to state. In Florida, the courts assume that each person has the capacity to create a will as long as they have sufficient intelligence to understand the nature and impact of the transaction.
In general, a person may sign a will if these criteria are met:
- The extent and nature of the owned property is understood – essentially, they know what they own and how much of it
- They remember and understand who their relatives are and are able to communicate who should inherit property
- They understand what a will is and it works
In Florida, a person must be of sound mind as well. Being of sound mind is the ability to understand the nature and extent of the property that is placed in a will or a trust. It is also required that no undue influence or fraud impact their capacity.
How You Can Help
According to the Alzheimer’s Association, before a parent, adult friend, or loved one with dementia drafts a will or signs any sort of legal document, they should first:
Look at the existing legal documents they have to determine which have been signed before the dementia diagnosis and which may still need to be signed or updated.
Speak to a medical professional to understand if the person with the diagnosis has the level of mental capacity required to make legal decisions.
Talk with Your Loved One
Discuss the documents with your loved one and talk through the consequences of signing them to ensure they understand the legal implications.
A diagnosis of dementia can feel overwhelming, but making sure all affairs are in order legally can help to take some of the pressure off so your loved one can enjoy their life and focus their energy on staying healthy. If you’d like to learn more about dementia estate planning, get in touch with the professionals at Haimo Law.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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