Frequently, when you or a family member are first diagnosed with dementia, you still have the capacity and are legally “competent” to make your own estate planning decisions. The four documents discussed here will assist a person with dementia and their loved ones as the disease progresses and they no longer have the mental capacity under the law to execute these documents and are no longer able to make decisions for themselves. If a person has not already made these planning decisions and executed the necessary documents, they must act immediately while they still have the mental (and legal) capacity to do so.
In order to be legally capable to sign estate planning documents a person must have “testamentary capacity” – they must be able to understand the import and consequences of what they are signing. They must understand the mechanisms being put in place and the who they are appointing to make decisions for them. Even if a person only has periods of lucidity it does not mean they automatically lack the required mental capacity. That can be complicated, as they need to review and execute the documents during a period of lucidity. Sometimes meetings with their attorney will need to be rescheduled to accomplish this goal.
The most important documents for a person who has been diagnosed with dementia are the Durable Power of Attorney, the Living Will, the Health Care Proxy and the Last Will and Testament.