Can My Loved One Create a Will if He or She is Diagnosed with Alzheimer’s?

Alzheimer’s and other forms of dementia can be a frightening and terrible disease for both the patient and his or her family. There is no known cure for Alzheimer’s, and the disease is progressive, meaning that the patient’s symptoms will become more and more severe over time.

The onset of Alzheimer’s and/or dementia can be a “wake-up” call for the patient’s family as they realize the need to protect the patient’s assets and begin planning for how his or her property should be disposed of after the patient’s death. However, does the fact that the patient has been diagnosed with Alzheimer’s mean that it is too late to craft a will for him or her? Not necessarily.

The Central Issue: Capacity

A mental disease or disorder diagnosis does not automatically mean that the patient cannot create a will. While the existence of a disease or disorder may be a relevant factor that a probate court would consider if the patient’s will was later challenged in court, the fact that a diagnosis had been made would not be determinative. Instead, the court will want to assure itself that the patient had capacity when he or she created his or her will or estate plan by looking for evidence that:

• The patient generally understood the nature and extent of the property that was his or hers;
• The patient knew who he or she wanted to benefit through the creation of the will and had a knowledge of the people that would generally be expected to benefit through a will;
• The patient had an orderly method for disposing of his or her assets.

In other words, so long as the court is persuaded that the patient was of “sound mind” when he or she created and executed the will, the court will allow the will to be admitted to probate notwithstanding the patient’s diagnosis.

What should you do – or even what can you do – if your loved one is either showing signs of dementia or Alzheimer’s or has recently been diagnosed with this condition and he or she has not created a will or other estate plan?

Here are some suggestions:

Act quickly!

Whatever you do, do not wait around before taking action. Your loved one may still have the requisite capacity to make a will or other estate plan, but this capacity can be lost. Make an appointment right away and speak with an estate planning attorney about creating a will or other estate plan for your loved one if you are unsure of what to do first.

Consider making any will that is created by your loved one self-proving (or at least have witnesses):

Self-proving wills contain a written attestation from both the creator of the will as well as the will’s witnesses. The witness’s attestation in a self-proving will is essentially a statement under oath that they observed the signing of the will, that the creator declared the will they signed to be his or her last will and testament, and that the creator of the will appeared to be of sound mind. Having a will witnessed or self-proved can make any future will contest easier on you and your family.

 

You should speak with an estate planning attorney right away about the options you have to assist your loved one in protecting his or her assets and wellbeing during this difficult time. The elder law attorneys at Giro Attorneys at Law, LLC can help you do this. Learn how we can help you and your loved one by calling our office today at (201) 690-1642.