Most, if not all, of our clients have encountered a loved one suffering from dementia. Dementia itself is not the disease, but is a symptom of one of a number of underlying brain diseases, the most notorious of which is Alzheimer’s Disease. However, not everyone who has dementia has Alzheimer’s.
When we are around a person with dementia, we may notice the symptoms quite subtly at first. Even after they become more noticeable, we see them flow in and out of moments of lucidity and confusion without warning, and often without a seeming trigger.
This is the nature of dementia. So how do we know if a person with dementia can sign legally binding agreements including a will or trust? Answering that question is almost entirely specific to the facts of the case. That is why this is one of the most perplexing and often litigated area of an estates and trust practice.
Can a Person with Dementia Sign a Will or Trust?
The test for whether a person, including a person with dementia, has the ability to sign a document relating to the disposition of their estate is (we are paraphrasing slightly):
- Does the client know reasonably well what the extent of their property ownership is? They do not need to be exactly precise on every asset, but aware enough that we can tell they are dealing in reality.
- Do they know who are the natural objects of their bounty? This generally means family, and if one family member is excluded, do they generally know why?
- Do they know this document gives their estate (their bounty) upon their death to the people they have named in their document?
- Do they know these things at the time they sign these documents? They might not remember ten minutes later, but the question is whether they knew so at the time they signed.
Michigan courts have held that “weakness of mind and forgetfulness are insufficient to invalidate a will if it appears that the mind of the testator was capable of attention and exertion when aroused and [the testator] was not imposed upon.”
Can a Person with Dementia Sign Other Documents?
A person with dementia may need to sign other documents like a deed, a power of attorney, a health care proxy, a contract for sale, etc. Legal practitioners generally agree that the standard of ability to sign such documents is slightly greater than for a will or trust. And the reason seems to be that often these documents will be dealing with specific property or a specific issue.
As your estate planning attorney, we would obtain at least one physician’s report and would carefully and slowly discuss the transaction with the client.
To sign any of the above documents, the person needs to be competent. If they are determined to be incompetent, any document they sign will have no legal effect. However, just because one exhibits early stages of dementia does not necessarily mean they are yet incompetent. For example, a person may forget the date and have trouble remembering their telephone number, but remember many other important facts. But clearly one presenting any traits of dementia is a warning to be very cautious.
As your estate planning attorney, we would be obtaining at least one physician’s report, and perhaps two. We would carefully and slowly discuss the transaction with the client. We might videotape the signing as further evidence of competency.
As a practical matter however, by the time most people become concerned that a person might be suffering from dementia, their competency to sign legal documents is likely compromised.
Are there Other Options?
Once a person is believed to be incompetent, or their competency seems significantly impaired, the next course of action is to go before a court, and have their competency determined. If determined to be incompetent, then interested parties (usually family) will seek to be appointed as guardian or conservator or both. The guardian is responsible for the well-being of the one with dementia, while the conservator is responsible for the security and protection of the property. Read more about Michigan adult guardianships and conservatorships.
A practical side to ending up in court is the anxiety and grief this can cause within the family. What if one family member thinks this is disrespectful while another knows something must be done? We have seen this lead to family arguments and even end in permanent estrangement; and as you might guess, greater expense. All of this leads us to our final point.
Act Earlier Rather than Too Late
It’s true that no one really likes discussing these matters. It is equally true that by not discussing them, clients and their families often end up in a worse place, an angrier place, than they would have been had they dealt with these uncomfortable issues before any potential dementia arose.
And families are left to wonder, and indeed argue, about what the family member with dementia would have wanted. There is no solid answer for this. But if your loved one signs these important documents before any dementia sets in, their intent can be made pretty obvious.
Regardless of the stage in which you or a family member may be, we welcome you to contact our Northville and Brighton estate planning firm with your questions. You may also request a free consultation by completing our “Contact Us” form.