Mom has been diagnosed with dementia. She doesn’t have any estate planning documents, such as a will, power of attorney or health care directive. I am often asked, “Can Mom still execute these documents? What level of capacity is needed?”
The legal capacity needed to execute a will is actually a pretty low threshold. A diagnosis of dementia or Alzheimer’s does not by itself mean the individual lacks capacity to execute documents. Neither is there a requirement that a doctor make that determination. The person must simply understand what it is they are signing and who they are designating as their fiduciaries (ie. executor, trustee etc.) and their heirs.
Capacity can also “come and go”. Mom may have good days and bad days as her dementia progresses. If she is having a “bad day”, one in which she may be agitated and confused, maybe unsure of who her children are, that would not be a day in which she would be able to execute documents. On the other hand, a day or week later, when she is having a “good day” and is capable of understanding and expressing her desires, Mom has the requisite capacity to execute documents.
But, what if Mom no longer has the good days? How are assets passed when there is no will and no ability to execute one? We’ll cover that one next week.