Bay Area Estate And Elder Lawyer: Can Someone With Signs Of Dementia Sign Legal Documents
Millions of individuals are affected by dementia in their lifetime. Unfortunately, it is usually after a medical crisis like dementia hits that many families begin to think about estate planning.
What people dont realize, however, is that it may be too late under the law to make a plan after dementia strikes. This is usually the case when dementia is in an advanced state. In order for legal documents to be valid in California, the person signing them must have testamentary capacity. This means that he or she must fully understand the implications of what is being signed.
Does that mean that your loved one can no longer sign legal documents after a diagnosis of dementia? Not necessarily. Dementia is a progressive condition, and mental capacity can be fluid in earlier stages. Your loved one may still be considered mentally competent to sign legal documents, even with a diagnosis of dementia if he or she:
- Can understand the nature and extent of their property
- Can remember their relatives and descendants
- Is able to articulate who should inherit their property
- Can understand what they are signing
- Can understand how all these things relate and come together to form a plan
In some instances, a verification from a physician about the individuals competence may be required and the determination of whether a person with dementia can sign legal documents will rest in the doctors hands.
Legal And Financial Planning For People With Dementia
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Many people are unprepared to deal with the legal and financial consequences of a serious illness such as Alzheimer’s disease or a related dementia. Legal and medical experts encourage people recently diagnosed with a serious illness particularly one that is expected to cause declining mental and physical health to examine and update their financial and health care arrangements as soon as possible. Basic legal and financial documents, such as a will, a living trust, and advance directives, are available to ensure that the person’s late-stage or end-of-life health care and financial decisions are carried out.
A complication of diseases such as Alzheimer’s and related dementias is that the person may lack or gradually lose the ability to think clearly. This change affects his or her ability to make decisions and participate in legal and financial planning.
People with early-stage Alzheimer’s or a related dementia can often understand many aspects and consequences of legal decision-making. However, legal and medical experts say that many forms of planning can help the person and his or her family address current issues and plan for next steps, even if the person is diagnosed with later-stage dementia.
How To Set Up And Register A Lasting Power Of Attorney
You can apply online for both types of LPA or download the forms, along with detailed guidance on how to complete them.
You can get someone else to use the online service or fill in the forms for you, such as a family member, friend or solicitor.
The LPA forms need to be signed by someone, apart from your chosen attorney, to state that you have the mental capacity to make an LPA. The forms also need to be witnessed.
You then need to register each LPA with the Office of the Public Guardian. Either you or your attorney can do this.
Registering the LPAs takes several weeks. You’ll have to pay a fee for each one, which may be reduced if you’re on a low income or receiving certain benefits.
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Can Someone With Signs Of Dementia Sign Legal Documents
Millions of individuals are affected by dementia in their lifetime. Unfortunately, it is usually after a medical crisis like dementia hits that many families begin to think about estate planning.
What people dont realize, however, is that it may be too late under the law to make a plan after dementia strikes. This is usually the case when dementia is in an advanced state. In order for some legal documents to be valid in Pennsylvania, the person signing them must have testamentary capacity. This means that he or she must fully understand the implications of what is being signed.
Does that mean that your loved one can no longer sign legal documents after a diagnosis of dementia? Not necessarily. Dementia is a progressive condition, and mental capacity can be fluid in earlier stages. Your loved one may still be considered mentally competent to sign legal documents, even with a diagnosis of dementia if he or she:
- Can understand the nature and extent of their property
- Can remember their relatives and descendants
- Is able to articulate who should inherit their property
- Can understand what they are signing
- Can understand how all these things relate and come together to form a plan
In some instances, a verification from a physician about the individuals competence may be required and the ability of whether a person with dementia can sign legal documents will rest in the doctors hands.
Scenario : Its Too Late For The Person To Sign A Power Of Attorney
Often, by the time a caregiver realizes that their older adult has diminished mental capacity, theyre no longer able to sign the necessary legal documents.
Anderson says, If a person gets to the point where they dont know who their family members are, what assets they own, and who they would want to make decisions for them regarding their assets and health care matters, then they arent mentally competent to sign a legal document such as a health care power of attorney or financial power of attorney.
In this case, Anderson advises, there is very little that can be done for the person except applying to the court for a formal conservatorship or guardianship.
A conservatorship is when the court appoints a person to have control over a persons finances. A guardianship is when a person is appointed by a court to have control over the care, comfort, and maintenance of another person.
Unfortunately, legal proceedings for these types of conservatorships and guardianships are usually time-consuming and expensive due to legal fees, agents fees, and court costs.
Option: Use married status to keep access to co-owned assetsAnderson points out one solution that could prevent these problems.
If the person is married and, as a couple, they made earlier decisions to hold their assets as co-owners, then the mentally competent spouse can still access the family checking accounts, savings accounts, or other assets without the necessity of going to court for a conservatorship.
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Why Capacity Is Needed To Execute A Living Will And A Health Care Power Of Attorney
Most attorneys and notaries are not medical professionals, so when determining the capacity to execute a legal document, they err on the side of caution. In fact, some will not even execute or prepare documents for an individual they know has an Alzheimers diagnosis.
I feel this approach is extreme and will personally execute documents for a person who can explain the basic purpose of the document to me 15 minutes after I explain it to him or her. But, in my experience, most middle to late-stage Alzheimers patients are not able to do so.
An Alzheimers diagnosis is overwhelming for the parent or senior diagnosed and their loved ones. As you prepare for the future, be sure to talk to senior loved ones early about getting a living will and a health care power of attorney.
They may resist at first, but dont give up when your loved one needs them, you will both be glad they have one.
Is It Difficult To Make A Power Of Attorney For Someone With Dementia Or Alzheimer’s
It is not necessarily more difficult to make a power of attorney for someone with dementia or Alzheimers, but there is one crucial thing to know. The person who is the grantor of the power of attorney in this case, the person who is suffering from dementia or Alzheimers must be able to understand what they are signing in order to create a valid POA. This is to protect the grantor from instances of elder abuse, graft, and other crimes. Making sure the POA is legal in this situation can be tricky. You may need a letter from a physician stating that the grantor can still understand what is being signed for the power of attorney to be valid.
If the grantor is still able to understand what they are signing, why would they need a power of attorney? It makes sense to make a power of attorney before the grantor loses the ability to sign and create a legal one. Sometimes, in these situations, a power of attorney is made springing, meaning it only goes into effect when the grantor can no longer demonstrate the ability to make these decisions. In this case, the person who is granted authority to make decisions for the grantor can only do so when the grantors own abilities come into question.
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Enduring Power Of Attorney And Dementia
In most states and territories, any legally competent person can sign an enduring power of attorney, nominating a trusted person to look after their personal financial affairs if they become unable to do so themselves.
This goes beyond a general power of attorney, which is only valid while the signer remains legally competent. An enduring power of attorney is designed to stay in force even if the signer succumbs to dementia and loses their mental capacity.
Advance Planning Advice For People With Dementia
Start discussions early. The rate of decline differs for each person with dementia, and his or her ability to be involved in planning will decline over time. People in the early stages of the disease may be able to understand the issues, but they may also be defensive, frustrated, and/or emotionally unable to deal with difficult questions. The person may even be in denial or not ready to face their diagnosis. This is normal. Be patient and seek outside help from a lawyer or geriatric care manager if needed. Remember that not all people are diagnosed at an early stage. Decision-making may already be difficult by the time the person with dementia is diagnosed.
Gather important papers. When an emergency arises or when the person with dementia can no longer manage their own affairs, family members or a proxy will need access to important papers, such as a living will or financial documents. To make sure the wishes of the person with dementia are followed, put important papers in a secure place and provide copies to family members or another trusted person. A lawyer can keep a set of the papers as well.
Review plans over time. Changes in personal situations such as a divorce, relocation, or death in the family and in state laws can affect how legal documents are prepared and maintained. Review plans regularly, and update documents as needed.
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Lasting Power Of Attorney
A lasting power of attorney is a legal document that allows you to choose a person you trust to act on your behalf if you’re no longer able to make your own decisions.
This person is referred to as your attorney and must be over 18 years old.
You may think that if you’re married or in a civil partnership, your spouse would automatically be able to deal with your bank accounts and pensions, or make decisions about your care if you’re no longer able to.
But this isn’t true. Without an LPA, your spouse wouldn’t be able to act on your behalf.
An LPA can only be used after it’s been registered at the Office of the Public Guardian .
There are 2 types of LPA covering:
- property and financial affairs
- health and welfare
You can choose to do both LPAs at the same time, or just one. You can choose the same person to be your attorney for both. Or you can have different attorneys.
Can Someone With Dementia Sign Legal Documents
Many people in the early stages of a dementia diagnosis retain the ability to understand and communicate their wishes regarding legal and financial matters. They can still manage their own affairs.
However, as the disease progresses, they may lose the ability to make sound decisions about these matters.
The inability to sign documents is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.
If you are not sure whether the person with dementia has the required capacity to sign a legal document, it is best to consult with an elder law attorney for sage legal advice. This is especially important if there is any potential for conflict among family members or other interested parties.
Its so much easier for everyone if all the legal arrangements are taken care of while the older adult is in good health. This helps greatly with planning the next steps of growing older.
If you have a loved one in the early stages of dementia and they havent yet completed the proper documents and legal matters that will help them and their family now is the time to do it! These are important decisions that shouldnt be put off.
Its also a good idea to appoint a durable power of attorney who can make financial and legal decisions on your loved ones behalf when the time comes.
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What Are The Risks Of Letting A Person With Dementia Sign Legal Documents
There are a few risks to consider before letting a person with dementia sign legal documents.
- First, the person may not have the capacity to understand what they are signing. This means that they may not be able to comprehend the implications of the document or make an informed decision about whether or not to sign it.
- Additionally, the person with dementia may not be able to remember what they have signed, which could lead to confusion or misunderstanding down the road.
- Finally, if the person with dementia changes their mind about the document after signing it, they may not be able to have it undone.
Before letting a person with dementia sign any legal documents, it is important to speak with their doctor or another medical professional to ensure that they have the capacity to understand what they are signing.
It is also important to make sure that the person with dementia is comfortable with the decision and understands the implications of the document. If there are any concerns, it may be best to have a lawyer or other legal representative present when the document is signed.
About the Author: Esther Kane
Health And Welfare Lpa
A health and welfare LPA gives your attorney the power to make decisions on your behalf about your health and welfare, such as:
- your daily routine
- medical care
- moving into a care home
- life-sustaining treatment
Once the LPA is registered with the Office of the Public Guardian, it can only be used when you’re no longer able to make your own decisions.
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What Happens If No Power Of Attorney Is Created
If the person who is suffering from dementia or Alzheimers can no longer make their own decisions, they are not legally able to sign a power of attorney document. Thats because this legal document grants important decision-making authority to another person, and so the grantor must fully understand what they are doing when signing the POA.
If a power of attorney can no longer be granted because the grantor does not have the legal capacity to sign the document, you might consider a conservatorship. Conservators can act like a power of attorney agent, with the ability to make certain medical and financial decisions. Becoming a conservator, however, takes time and sometimes involves a costly court procedure. That said, if youre looking to provide substantial support for a person who cannot make decisions for themselves, this court procedure might be worth the effort. Just know that it can require a significant amount of effort and should be avoided if at all possible because it is a highly invasive option compared to a power of attorney.
If you think a conservatorship could be the right solution, you may want to speak with a lawyer first in order to fully understand what a conservatorship would mean in your particular situation.
Additional power of attorney resources:
What Is The Mental Capacity Act
The Mental Capacity Act is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.
Your doctor, social worker or other medical professional can help assess mental capacity.
If someone lacks capacity to make a decision, which needs to be made for them, the MCA states the decision must be in their best interests.
The MCA has a checklist to help decide what’s in a person’s best interests.
In order to grant power of attorney to someone to act on your behalf, make an advance decision and make a will, you must have mental capacity to do so.
This is why it’s important to put plans in place as soon as possible.
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Capacity Requirements For Legal Documents
Mental capacity is a complex concept that is not necessarily black and white, especially when dementia is a factor. A senior with some form of cognitive decline may experience moments of lucidity during which they could be legally competent to sign a document like a will. Furthermore, different levels of mental capacity are required to execute different legal documents and ensure their validity.