A last will and testament and other documents are part of a typical estate plan in Wisconsin. These legal documents are important to your future medical care and finances as well as the distribution of assets following your death. Typically, a person is able to sign these documents without question. However, when a person has dementia, they may be unable to legally sign these documents. A person with dementia may or may not be able to sign legal documents, depending on their current mental capacity. An experienced elder law attorney will assist you with legal documents in these types of situations.
What is Dementia?
To understand mental capacity, it is helpful to know some information about dementia. The National Institute on Aging (NIH) defines dementia as “a loss of cognitive function, thinking, remembering and reasoning, to such an extent that it interferes with a person’s daily life and activities.” Dementia has a range of severity and symptoms. It begins with mild symptoms and progresses to severe symptoms in which a person is unable to function normally. Dementia affects about a third of people over the age of 85. There are various types of dementia. The most common forms of dementia are:
- Alzheimer’s disease
- Vascular dementia
- Frontotemporal dementia
- Lewy body dementia
- Mixed dementia
All types of dementia have similar symptoms including such things as memory loss, confusion, poor judgment, difficulty communicating or understanding, problems with handling finances, getting lost, taking longer than usual to complete tasks, losing interest in life, acting impulsive, and more. Those with dementia often have an irreversible loss of nerve cell function.
Testamentary Capacity
A person may only sign legal documents when they are of sound mind. In other words, a person who is suffering with an inability to understand or communicate is not able to sign any type of legal documents. Sound mind is also called testamentary capacity in the law. Testamentary capacity is the ability to know and understand your will in order to create a coherent plan. In Wisconsin, a person over the age of 18 is presumed to have testamentary capacity. Depending on the severity, a person with dementia may not possess testamentary capacity, which could invalidate the documents. A beneficiary may challenge a will based on the person’s mental incapacity at the time they signed the document. Therefore, you must always ensure that a person is fully capable of signing these documents.
Verify Testamentary Capacity
A person with dementia may be able to legally sign documents, particularly if they are in the early stages. Unfortunately, many families wait too long to consider legal documents such as a will and power of attorney until it is too late. If a loved one has dementia, it is best to seek professional verification of their competence from a physician. The physician will evaluate the person’s mental capacity to understand their property and assets, know their relatives and beneficiaries, understand the documents and the overall plan for execution. Keep in mind that a person’s mental capabilities can decline quickly and therefore, it is best to have them sign these documents as soon as possible.
If a person is unable to sign documents due to a lack of mental capacity, you will need to obtain legal guardianship or conservatorship through the courts in order to execute them. An experienced elder law attorney will guide the process and ensure that the documents are executed in a legal manner so they cannot be challenged later. To seek legal counsel regarding wills and other legal documents, contact our law firm at Moen Sheehan Meyer, Ltd. at (608) 784-8310 or via email.