You've probably heard about families who delayed estate planning and later faced legal dilemmas when dementia struck. With a dementia diagnosis, many wonder: Is it too late to create a valid will? In some cases, it might still be possible. 

Standards of Testamentary Capacity

Laws regarding the ability to make or change a will vary by state; many also have age and mental capacity requirements. In Maine, anyone 18 or older (or a legally emancipated minor) of sound mind may make a will. Generally speaking, to be considered mentally capable or able to understand how to create a will, the will-maker must meet four legal standards.

The Alzheimer’s Association stresses that as long as a person with dementia has legal capacity, they should participate in legal planning. It's also crucial to note that:

• While they have legal capacity, the person with dementia retains the right to make their own decisions.
• Even with a power of attorney in place, while the person with dementia is legally capable, the agent acting on their behalf can't override their decisions.
• Once the dementia patient can't make decisions, the agent gains the authority to manage their income and assets but can't legally change a will. They must act according to the person's wishes and in their best interest.

When the person with dementia has signed any legal documents, they, their caregiver or a trusted family member, the attorney, and health-care professionals should all have copies.

Four Aspects of Evaluating Mental Capacity

The definition of "sound mind" can be open to interpretation, especially when dementia is involved. When questions arise about a person's ability to create a valid will, several factors are explored:

• Legal evaluations: During will drafting, attorneys often ask questions about the client's understanding of their assets and intentions.
• Medical reviews: Records or testimony from health-care professionals to assess brain function.
• Witness testimony: Statements from a notary public or witnesses present at the will signing regarding the person's mental state.
• Documentation: Records of discussions about the person's wishes and understanding of the will.

Physical disabilities don't automatically impair mental capacity. For example, someone who can't sign a will might still grasp the meaning and consequences. 

Capacity Crisis Prevention: Next Steps and Considerations 

If you're dealing with a situation involving dementia and estate planning, consider these steps:

1. Act promptly: Address legal affairs while the person can still make sound decisions.
2. Seek professional help: Consult with an experienced elder law or estate planning attorney who understands capacity issues.
3. Medical documentation: Consider getting a letter of competency from a doctor familiar with the person's condition. In case of disputes, this can be valuable evidence.
4. Regular reviews: For those in the early stages of dementia, review estate plans often.
5. Video recording: Documenting the will signing process can show evidence of capacity.
6. Avoid undue influence: Ensure the will creator isn't being pressured, which could invalidate a will.

Planning Now For a Smooth Outcome

Unfortunately, dementia often worsens over time. If concerns arise over someone's capacity, address their legal affairs promptly – while they're still mentally capable – to honor their wishes and potentially avoid disputes. 

Before you ever face the complex process of proving someone's capacity, document their final wishes now. An experienced estate planning attorney can help ensure you complete a legally valid will before capacity becomes a concern. 

Contact us online or call (207) 377-6966 during regular business hours for a free consultation.