A diagnosis of Alzheimer’s disease or other form of dementia can be devastating and frightening for the affected patient and for their loved ones – even if the diagnosis itself is not particularly surprising. If your parent has recently been diagnosed with a degenerative condition that affects memory, they will likely want to put an estate plan in place (or modify the one they have) while they still are able to make informed decisions on their own.
Oftentimes, dementia patients in the early stages of the disease and their loved ones live in some form of denial for as long as possible. However, it’s crucial to communicate about their wishes for the future while you both can – and for those wishes to be codified where appropriate.
Testamentary and contractual capacity
Questions concerning legal competency can plague the estate administration and probate processes of individuals who have left the task of setting their affairs in order sitting too long. Different types of competency are required for executing various estate planning documents. Testamentary capacity is required for a will. That means a person must understand what a will is and the purpose of it. They need to comprehend, for example:
- What assets they have and their value
- Who their heirs and other beneficiaries are
- What they’re leaving to each beneficiary and any potential consequences
A higher level of capacity, known as “contractual capacity” is required for other documents that your parent will need to put in place, like powers of attorney (POA). These include a durable POA that allows a trusted person to take charge of financial, business and other personal affairs when the person naming a POA becomes unable to do so.
A POA for health care allows someone to serve as a health care proxy who can talk with a person’s doctors and direct their medical care. By putting an advance directive for health care (“living will”) in place while they still have the necessary competency, your loved one can make their wishes known concerning issues like when they do – and don’t – want artificial life-prolonging measures taken and other end-of-life matters.
Where to begin
There are many other decisions they’ll likely want to make while they can – such as where they’ll live when they can no longer take care of themselves. It can all be overwhelming for everyone involved.
If there’s any question about your loved one’s current testamentary, contractual and other mental capacity when it comes to putting these and other documents in place, you may need to ask for an evaluation by their doctor. A good first step, however, is to get experienced legal guidance to better ensure that you’re able to help your loved one put an estate plan in place that addresses your loved one’s needs, given the unique circumstances they’re facing.
