Can a Person With Dementia Make a Valid Will?

While millions are affected by dementia, having a diagnosis does not automatically invalidate a person's ability to engage in estate planning. It is still possible for a person with dementia to make a valid will, but only if they possess the necessary "testamentary capacity" at the time of signing.

Quick Summary

It is sometimes possible for an individual with dementia to create or alter a will, provided they meet the legal standard of testamentary capacity at that specific moment; expert evaluation and legal counsel are essential to ensure the will's validity and protect against future challenges.

Key Points

• Testamentary Capacity is Key: A person with dementia can make a valid will if they possess the required mental capacity—known as "testamentary capacity"—at the precise time of signing, regardless of a prior diagnosis.

• Not a Universal 'No': A dementia diagnosis alone does not automatically invalidate a will; rather, it prompts a closer legal examination of the individual's mental state at the time of execution.

• Medical and Legal Documentation is Critical: Involving an elder law attorney and securing a medical evaluation of competence during the will-signing process is vital to protect against future legal challenges.

• Guard Against Undue Influence: Given the vulnerability that can come with dementia, careful measures must be taken to ensure the individual is not being coerced or improperly influenced by others.

• Early Planning is Best: Addressing estate planning early in the disease progression, when cognitive abilities are clearer, is the strongest way to ensure a person's wishes are documented and upheld.

• Alternative Protections Exist: If testamentary capacity is clearly gone, other legal tools like a power of attorney or conservatorship may be necessary to manage a person's affairs.

• Expect Potential Contests: Families should be aware that a will signed by someone with dementia may be more likely to be contested, emphasizing the need for meticulous documentation and evidence.

Testamentary Capacity: The Cornerstone of a Valid Will

The ability for a person with dementia to make a valid will is determined by a legal concept known as testamentary capacity. This is not a static medical state, but rather a snapshot of a person's cognitive ability at the exact time the will is executed. A diagnosis of dementia, even a severe one, does not automatically revoke this capacity, as cognitive function can fluctuate. Courts recognize that an individual may have periods of lucidity or maintain certain faculties longer than others.

For a will to be considered valid, the person signing it, known as the testator, must demonstrate several key understandings, which form the core of testamentary capacity:

• Understanding the nature of the act: The individual must know they are signing a legal document that will govern the distribution of their assets after death.
• Understanding the nature and extent of their property: They must have a general awareness of what they own, including assets, real estate, and financial holdings, even if they don't know every single detail.
• Understanding the beneficiaries: The person must know who their natural heirs and relatives are, and who they are choosing to include or exclude from the will.
• Understanding the disposition: They must comprehend how the document disposes of their property and how all these elements combine to form a coherent plan.

The Role of a Medical and Legal Team

When a person with dementia is drafting or revising a will, it is crucial to involve a qualified legal and medical team. This is a protective measure to ensure the will accurately reflects the person's wishes and to deter future challenges from disgruntled heirs.

1. Seeking professional help: An experienced elder law or estate planning attorney can assess the person's current capacity and guide them through the process. The attorney will ask specific questions to determine if the individual meets the legal standards of testamentary capacity.
2. Obtaining medical documentation: It is highly advisable to get a letter of competency from a doctor who is familiar with the person's condition. This medical documentation can serve as valuable evidence in court if the will is ever contested. Some professionals even specialize in forensic psychiatric evaluations for this purpose.

Safeguarding Against Challenges: Undue Influence and Proof

Will contests, where a will's validity is challenged in court, are increasingly common in cases involving dementia. A diagnosis, particularly if coupled with a sudden or unexpected change in the will's provisions, can raise red flags.

One of the most frequent grounds for contesting a will is undue influence. This occurs when someone exerts excessive pressure on a vulnerable testator, overpowering their free will and coercing them into making decisions they wouldn't have otherwise made. The person may still have cognitive ability but be more susceptible to manipulation due to their illness.

To safeguard against these potential challenges, attorneys often take extra precautions during the will execution:

• Video recording: Recording the will-signing process can provide powerful evidence of the testator's mental state and their independent decision-making.
• Disinterested witnesses: Involving witnesses who are not beneficiaries of the will ensures their testimony is unbiased.
• Contemporaneous evaluation: A forensic psychiatrist can conduct an evaluation at the time of signing to provide an unbiased assessment of capacity and susceptibility to undue influence.

Comparison of Estate Planning Options for Individuals with Dementia

Feature	Will with Testamentary Capacity	Power of Attorney	Conservatorship (Guardianship)
Initiation	By the individual with dementia while they have capacity.	By the individual with dementia while they have capacity.	Initiated by petition to the court when an individual is incapacitated.
Primary Purpose	Distribute assets after death according to specific wishes.	Appoint an agent to make financial/legal decisions while the person is alive.	Court appoints a conservator to manage financial/legal affairs for an incapacitated person.
Effectiveness with Dementia	Only valid if capacity is present at the moment of signing. Becomes void if capacity is lost before signing.	Can be activated if the person becomes incapacitated later on. Cannot change the will.	Court-ordered solution for individuals who no longer have legal capacity to make decisions.
Legal Documentation	Requires a formal, signed, and witnessed document.	Requires a signed and notarized legal document.	Requires a court order; legal and medical professionals involved.
Cost	Typically lower, primarily attorney fees.	Typically lower, similar to drafting a will.	Significantly higher, involving court costs, legal fees, and ongoing reporting.
Control	Testator maintains control over their legacy and asset distribution.	Individual designates who has control if they lose capacity.	The court appoints a person who takes control; individual loses decision-making authority.

Conclusion: Planning for a Secure Future

While the legal nuances can be complex, it is crucial to address estate planning as early as possible after a dementia diagnosis. Proactive steps, including working with legal and medical professionals, can ensure that a person's final wishes are documented accurately and are legally defensible. This forethought can provide immense peace of mind and help avoid costly and painful family disputes later on.

It is never too early to start these conversations, and with the right support, a valid will is often still achievable. For additional information on elder law and estate planning considerations, individuals and their families should consult with an experienced professional. A great starting point can be found at resources like the Alzheimer's Association, which offers extensive guidance on legal and financial planning for those with dementia and their families.

Disclaimer: This information is for educational purposes only and does not constitute legal advice. Please consult with a qualified attorney regarding your specific situation.

Frequently Asked Questions

Does having a dementia diagnosis mean a person can't make or change a will?

No, a dementia diagnosis does not automatically prevent someone from making or changing a will. The key factor is whether they possess testamentary capacity—the legal standard of mental competence—at the moment the will is executed.

What is testamentary capacity in the context of dementia?

Testamentary capacity is the legal term for the mental ability to create a will. It requires the person to understand what a will is, what they own, who their heirs are, and how the will distributes their property.

How can you prove that a person with dementia has testamentary capacity?

Proof involves documented evidence from both legal and medical professionals. An estate planning attorney should carefully assess the person's understanding, and it's highly recommended to obtain a letter from a doctor or forensic psychiatrist confirming their competence at the time of signing. Video recording the process can also provide strong evidence.

What is undue influence, and how does it relate to wills with dementia?

Undue influence occurs when a person is improperly pressured or manipulated into creating a will that doesn't reflect their true wishes. Individuals with dementia may be more vulnerable to this, making it a common reason for will contests. Attorneys take steps to ensure the testator is acting freely and independently.

Can a person with a Power of Attorney (POA) change the will for someone with dementia?

No, a Power of Attorney generally does not grant the authority to change or create a will on behalf of another person. The ability to make a will is a personal right held by the testator alone, provided they have the necessary capacity.

Is a will made by someone in the early stages of dementia more likely to be valid than one made in later stages?

Generally, yes. During the early stages, cognitive abilities are often less impaired, making it easier to demonstrate testamentary capacity. It's best to address estate planning early to avoid potential legal complications and challenges later in the disease's progression.

What happens if a will made by a person with dementia is found to be invalid?

If a court invalidates a will, the estate may either revert to a previous, valid will or, if none exists, be distributed according to the state's intestacy laws. This often leads to assets being divided in a way the deceased person may not have intended.

What steps should family members take if they are concerned about a will made by a loved one with dementia?

Family members should seek legal counsel from an estate planning or elder law attorney as soon as possible. They can explore options for contesting the will based on lack of capacity or undue influence, using medical records and witness testimony as evidence.