The progression of Alzheimer’s disease or dementia raises urgent estate planning questions. A will made before capacity is lost is valid; a will made after capacity is lost is not. Acting while capacity remains is the most important thing a person with these conditions can do to protect their wishes.
The Critical Importance of Acting Early
When someone receives a diagnosis of Alzheimer’s or dementia, one of the first priorities should be reviewing and updating estate planning documents – while capacity remains. As the disease progresses, the ability to make legally valid decisions diminishes.
An early will, made when capacity is unquestionable, is far better protected than a will made in the middle stages of the disease when capacity might be disputed.
Assessing Capacity in Progressive Conditions
A diagnosis of Alzheimer’s or dementia does not automatically mean the person lacks testamentary capacity. In the early stages of these conditions, people often retain sufficient capacity to make valid legal decisions.
The relevant question is whether, at the specific time the will was made, the person understood what they were doing and met all the elements of testamentary capacity.
Documenting Capacity When Making the Will
When a will is made by someone with a known cognitive condition, extra documentation of capacity is essential. This might include a contemporaneous medical assessment by a specialist, involvement of the treating physician in the will-making process, or other documentation that supports the validity of the will.
An attorney experienced in this area will know how to create this documentation effectively.
Continuing Power of Attorney
Alongside a will, a person in the early stages of cognitive decline should also execute a Continuing Power of Attorney (iyui ko’ah memushach). This document designates someone to make decisions on their behalf when they can no longer do so themselves, covering finances, property, and health decisions.
Family Communication
Discussing estate planning openly with family members while the person still has capacity can prevent disputes later. When family members understand and accept the reasoning behind the estate plan, they are less likely to challenge it afterward.
