The Lights Are On, But is Anyone Home?

I often get calls from individuals who request an immediate appointment for an elderly loved one or friend who is mentally slipping away because of dementia or Alzheimer’s disease. They want to help the elderly person complete or make changes to his or her estate plan before it’s too late. I always feel sad for having to deliver the bad news: unfortunately, by the time the signs of mental instability are noticed, it might already be too late for the loved one to be able to make any legal decisions concerning his or her estate.

Both dementia and Alzheimer’s are progressive medical conditions. Both usually begin with minor memory losses and language problems. As the conditions progress, memory loss becomes severe and the sufferer becomes unable to understand documents, what he or she owns, and/or the identity of family members or other people they should know. Because the conditions are progressive, sufferers generally have “good days” and “bad days”. On a good day, a person might have legal capacity to create or modify an estate plan. On a bad day, which could be the next calendar day, that same person might lack such capacity. In addition, different legal acts or decisions may have different legal capacity standards. A person might be competent to sign a deed but incompetent to make a will or trust. Capacity issues have to be handled on a case by case, transaction by transaction basis. An attorney does not have a legal duty to determine capacity; however, a good attorney will make an initial assessment and refuse to participate in legal transactions where it appears pretty clear that the person has diminished capacity. This is especially true if there has been a medical diagnosis of either dementia or Alzheimer’s.

When a relative or friend calls to make an appointment for an elderly person and even drives him or her to the attorney’s office, issues involving possible fraud or undue influence arise. Court cases involving the validity of estate plans usually involve disputes over capacity where one party alleges that the person who stands to benefit from the estate plan in question took advantage of the elderly person’s weakness of mind. These situations usually involve two factions of the same family fighting each other. One side is trying to prove that the elderly person was mentally unfit at the time he or she made a will and the other side is trying to prove the opposite. Each side has their own attorneys, doctors, and evidence to prove their respective arguments. Such cases involve thousands of dollars and many months or years to resolve.

The reality is that at a certain age we are all liable to wake up and find ourselves a shell of our former selves physically, emotionally and/or mentally. Don’t wait until it’s too late to get your affairs in order. © 2013 by Marlene S. Cooper. All rights reserved.