Alzheimer’s disease has increased in prevalence in recent years. According to the Alzheimer’s Association, one in three seniors will die of Alzheimer’s disease or another form of dementia. Alzheimer’s disease is currently the sixth leading cause of death for Americans and the fifth leading cause of death for Americans sixty-five or older.
Given the increased prevalence of Alzheimer’s disease, the question of whether or not a person with Alzheimer’s disease has the legal capacity to execute or modify documents has become increasingly relevant.
In general, the standard for legal capacity is fairly low. As long as someone understands what the purpose of the document is, what the document does, and has a reasonable idea of what the document affects, then a person has the capacity to either to sign a new document or to sign a modification to an existing document. A person must have that capacity at the time the document is being signed.
A mere diagnosis of Alzheimer’s disease, or some other form of dementia, is not enough to render someone incompetent. Even if a person has moments or longer phases of severe symptoms of dementia, that person can still execute legal documents during a period of lucidity.
In addition, even if someone is physically incapable of making a complete, physical signature, they may still be able to execute legal documents by signing with a mark or allowing someone to sign for them on their behalf. Regardless of an individual’s ability to physically sign the document, they must still meet the legal capacity requirements for the document to be valid. Different states have different rules regarding the requirements for a legal signature from a physically incapacitated individual. Please check with an experienced local attorney to find out the rules in your state.
Even though the standards for legal capacity may seem low, individuals who have been diagnosed with an early form of dementia should still begin planning as soon as possible. It is important to have documents in place that detail who is authorized to make what decisions in case of a future incapacity. Additionally, given enough time, a plan can be implemented to protect a person’s estate from the cost of nursing home care. An experienced elder law attorney can help evaluate each person’s needs and work through their planning options.
To develop or evaluate your estate plan for a potential future incapacity, please call Martha C. Brown & Associates at (314) 962-0186.