Millions of people are affected by dementia, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to sign a last will and testament or other documents, but certain criteria must be met to ensure that the signer is mentally competent.
Many family members or friends discourage those with dementia from seeking legal advice because they feel that the person is not capable of doing planning or executing documents. In many instances that is not the case and the individual does, in fact, have enough mental capacity to sign a will. However, in some circumstances an individual is clearly incapacitated and a guardianship proceeding may be required in order to obtain the appointment of a guardian to manage the individual’s affairs. If a person is deemed to be incapacitated he/she clearly cannot execute a will.
In order for a will to be valid, the person signing must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.
Generally, you are considered mentally competent to sign a will if the following criteria are met:
- You understand the nature and extent of your property, which means you know what you own and how much of it.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
Family members may contest the will if they are unhappy with the distributions and believe you lacked mental capacity to sign it. In addition, a will can be contested if “undue influence” was exerted on the signer of the will. If a will is found to be invalid, a prior will may be reinstated or the estate may pass through the state’s intestacy laws (as if no will existed). To prevent a will contest, your attorney should help make it as clear as possible that the person signing the will is competent. The attorney may have a series of questions to ask you to assess your competency. In addition, the attorney can have the will signing videotaped or arrange for witnesses to speak to your competency. In any event, New York law requires that at least 2 individuals witness the signing of a Last Will & Testament.