When you create an estate plan, one of the most important things is to ensure that its validity won’t be called into question when the plan documents are needed. This could be use of a Durable General Power of Attorney in the event of incapacity, or use of a Will or Trust after someone dies and the Estate enters the administration process. What are the issues, then, that may leave such documents open to doubt?
In Virginia, as in all states, it is important that the person signing any estate document (the “creator”) is at least age 18 (or younger if active duty military) and of “sound mind” when creating such document. Age determinations are pretty straightforward but what indicates that an individual was of sound mind at the time of creation?
What Makes for a “Sound Mind?”
Sound mind, commonly referred to as testamentary capacity, demands that the creator understands:
- What exactly they are doing;
- The type of property and assets in question; and
- The relationship that they have with the individuals they include in the document (as well as those they may choose to exclude!).
For millions of families who have a loved one struggling with a dementia diagnosis, sound mind may be called into question. This is because dementia is a disease that can impact an individual’s memory. However, it is important to understand that dementia is a progressive disease. This means that an individual diagnosed with dementia will worsen over time. Therefore it does not always take away an individual’s capacity right away and a person may have “good” times and less good times in any given day.
Early Stage Dementia and Estate Planning
Often early stage dementia only impacts short-term memory at first. This may mean that the individual tends to lose items frequently and forgets a lot. However, this does not mean that they are unable to understand the three aforementioned requirements of testamentary capacity. Therefore an individual with dementia may still be perfectly capable of creating a valid estate-planning document such as a will or trust.
How Might You Assist?
When your loved one still has the mental capacity to create a valid estate plan, they may still benefit from your assistance. You may be able to help them by:
- Assisting with making a complete list of their assets;
- Speaking with them about their wishes and taking detailed notes; and
- Encouraging them to consult with a qualified estate-planning attorney who can help to ensure that their wishes are adequately carried out.
Just keep in mind that you are unable to sign as a witness to your loved one’s estate planning document if you are a beneficiary.
Our practice in cases where there are questions of testamentary capacity is to gently question our client about some personal things such as who is in the room with them or who came with them to the office, the names of their children and grandchildren, if any; some general things such as the day of the week, date of the month, season, etc., and then some specific things such as their understanding of what they are in our office for, what they want from our services, if anyone is forcing them to do anything they don’t want to do, and if they are not providing equally for their beneficiaries or are disinheriting anyone, or are providing for someone other than family, we ask them to explain why they want to do that. Note that for these last questions we try to talk only to the client without any family members present to be sure there is no undue influence, another reason that estate plans can fail upon a challenge.
Since many people will often question the validity of an estate plan created by someone with early stage dementia, it’s important that you do all you can to prevent them from contesting it during the probate process.
It is for this reason that you should keep your loved ones in the loop as to your wishes and their estate plan and to consult with a qualified Virginia estate-planning attorney whose assistance will help to prevent much of this questioning.
Reilly Law, PLC Helps Those in Virginia Who Are in Need of a Comprehensive Estate Plan
At Reilly Law, PLC, we understand the importance of protecting your assets and expressing your wishes. That is why we call what we do Peace of Mind Planning. We will help you to create a comprehensive estate plan as you desire that makes the lives of your loved ones easier. To learn more or to schedule a free consultation, contact us today!