Often we are advised to plan for the possibility that we will one day become unable to handle our own affairs.
We create a power of attorney to give a trusted loved one the ability to make our financial and medical decisions on our behalf, but may feel a loss of control and independence at doing so.
That feeling of independence and control is why many people put off creating legal documents that could help their caregiver if the need arises.
Unfortunately, many people often realize the need for such documents after it is too late and their loved one isn’t cognitive, or competent, enough to create these needed documents.
Legal Document Capacity Requirements
Determining legal competency isn’t always a black and white matter, especially if dementia is involved.
Furthermore, different levels of competency are required for different types of legal documents to ensure they are valid.
Last Will and Testament
You may be surprised to find out that a person with dementia, even if they are already under legal guardianship, may still have the legal ability to make a will.
A person may be found competent by an attorney that assesses their client if they meet certain conditions.
These conditions include the person being able to:
- Be aware of their children and spouse
- Know what their assets are and what they are worth
- Understand what the will means, and make a disposition of their property
Power of Attorney Documents
Determining competency for executing a power of attorney is a bit different.
You must be able to understand and appreciate the effect and extent of the document you are signing. The exact competency requirements for a power of attorney may also vary from state to state.
This also means that a person may be deemed competent to sign a will, but not competent enough to sign a power of attorney document.
If a person is deemed incapacitated to sign a power of attorney, their adult child or other family members will need to file documents with the court to seek conservatorship and/or legal guardianship in order to manage their loved one’s affairs.
Trusts
A trust is typically considered to be more of a contract than a will, which means the mental capacity required is often higher.
However, a few states have realized in recent years that some types of living trusts are being used as a substitute for a traditional will and have enacted statutes or case laws to make the mental capacity required for a trust the same as what is needed to sign a will.
In Conclusion
The best advice when it comes to planning your estate is to not wait until it’s too late to engage in proper legal planning.
Have conversations with your loved ones early on and discuss your wishes with an elder law attorney before it is too late.
