Esther C. Kane, C.D.S.Many people in the early stages of a dementia diagnosis retain the ability to understand and communicate their wishes regarding legal and financial matters. They can still manage their own affairs.
However, as the disease progresses, they may lose the ability to make sound decisions about these matters.
The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes, “incapacity”) is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.
elder-law.com
If you are not sure whether the person with dementia (or Alzheimer’s disease) has the required capacity to sign a legal document, it is best to consult with an elder law attorney for sage legal advice. This is especially important if there is any potential for conflict among family members or other interested parties.
It’s so much easier for everyone if all the legal arrangements are taken care of while the older adult is in good health. This helps greatly with planning the next steps of growing older.
If you have a loved one in the early stages of dementia and they haven’t yet completed the proper documents and legal matters that will help them and their family – now is the time to do it! These are important decisions that shouldn’t be put off.
It’s also a good idea to appoint a durable power of attorney who can make financial and legal decisions on your loved one’s behalf when the time comes.
How Is Someone’s Mental Capacity Determined?
A person’s mental capacity is determined by their ability to understand information and make decisions. If someone can no longer do either of those things, they are considered to have diminished capacity.
There are a few different ways to determine if someone has diminished capacity. A doctor or other medical professionals can assess a person’s cognitive abilities through tests and interviews
Capacity evaluation for a patient with dementia is used to determine whether the patient is capable of giving informed consent, participate in research, manage their finances, live independently, make a will, and have ability to drive. Patients with dementia cannot be assumed to have impaired capacity.
National Library of Medicine
There are specific tests that are used to determine a person’s ability to comprehend and communicate. The tests usually consist of a series of questions that assess the person’s ability to understand and process information.
Some of the factors that are looked at include:
- The ability to understand the nature and consequences of their decisions
- The ability to appreciate the possible outcomes of their choices
- The ability to make reasoned decisions
- The ability to communicate their wishes
If the person is unable to understand the information or make reasoned decisions, then they are considered to lack mental capacity. This means that they would not be able to validly sign legal documents.
Can Someone With Dementia Legally Consent?
The legal answer is maybe. It all depends on the severity of the dementia and when the document was signed. A person with early-stage dementia may be able to sign a contract or will, but someone in the late stages of the disease probably cannot.
For a document to be legally binding, the person must understand what he or she is signing. If the person can’t comprehend the document, then it’s not valid. This is called “lack of capacity.”
Basically, a lack of capacity means that one cannot legally agree to the stipulations of contracts because of a brief or permanent condition that affects their ability to make decisions. Consequently, contracts may be voided if the party is determined to lack the capacity to agree to enter into a legal agreement.
webblawgroup.com
Of course, there are always exceptions to the rule. If a person with any form of dementia appears to understand what he or she is doing at the time the document is signed, then it may be considered valid.
What Are The Rights Of People With Dementia?
People with dementia have the same rights as other individuals. This includes the right to:
- Be treated with respect
- Have their privacy respected
- Have their dignity respected
- Have their property respected
- Make their own decisions
- Communicate their own needs and wishes
- Receive information in a way that they can understand
- Have access to services that meet their needs
- Be involved in planning for their care
- Complain about their care without fear of reprisal
People with dementia may need help to exercise their rights. They may need someone to speak on their behalf or help them to understand what is happening. Caregivers and service providers have a responsibility to support the rights of people with dementia.
The person living with dementia maintains the right to make his or her own decisions as long as he or she has legal capacity. Power of attorney does not give the agent the authority to override the principal’s decision-making until the person with dementia no longer has legal capacity.
Alzheimer’s Association
The law recognizes that people with dementia may not be able to make certain decisions for themselves and provides for ways to protect their interests. For example, guardianship orders can give someone else the legal authority to make decisions about a person’s personal welfare, property or financial affairs.
A legal guardian can be a family member, a social worker, or a professional guardian. The court will appoint a guardian only if it is satisfied that the person with dementia cannot make decisions for him or herself and that appointing a guardian is in the person’s best interests.
The Basics of Dementia and Legal Documents
Dementia is defined as “…a general term for loss of memory, language, problem-solving and other thinking abilities that are severe enough to interfere with daily life.” (Alzheimer’s Association)
Dementia affects people of all ages, but is most common in older adults.
A diagnosis of dementia can make it hard for a person to remember things, communicate, and take care of him or herself. People in the later stages of dementia may need help with day-to-day activities, such as eating, dressing, and bathing.
In some cases, dementia patients are able to live independently for a time as their disease is still developing.
But eventually they may no longer be capable of making decisions on behalf of themselves and need assistance with every task from day-to-day life such has bathing or dressing self in order maintain dignity until death comes sooner than later.
This does not mean that the person with dementia loses all decision-making ability. Rather, the person may have difficulty with complex decisions or choices.
A person with dementia may be able to sign important documents, such as a will or power of attorney, in the early stages of the disease. As the disease progresses, the person’s ability to make sound decisions declines. This can pose problems if the person has not taken steps to plan for the future.
It is important to talk with an elder law attorney about these issues before a person with dementia loses the ability to make decisions.
List Of Legal Documents To Speak To An Attorney About
An advance directive is a legal document that can designate someone else to make medical and financial decisions on the person’s behalf.
A Durable Power of Attorney for Healthcare (DPOA-HC) are a type of health care directives that appoints a surrogate to make healthcare and medical decisions on the person’s behalf. The DPOA-HC can be used to give someone authority to make decisions about medical treatment, including end-of-life care.
A Durable Power of Attorney for Finances (DPOA-F) is a legal document that allows someone else to manage the finances of a person with dementia. This may include paying bills, managing bank accounts, and selling property.
When considering using a Power of Attorney please be aware that it must be established before the Principal becomes incapacitated. Also, some financial institutions may require additional documentation to verify the validity of the Power of Attorney. Be sure to provide the appropriate financial institutions with a copy of the Durable Power of Attorney after it is created.
Oakworth Capital Bank
It is important to note that state laws vary regarding advance directives. It is important to consult with an attorney in your state to ensure that the documents are completed correctly and meet all legal requirements.
In general, a person with dementia may sign legal documents as long as they understand the nature and consequences of the document. However, as the disease progresses, it is likely that the person will no longer have the capacity to sign legal documents.
At this point, any advance directives or Durable Powers of Attorney should be in place to ensure that the person’s wishes are carried out.
Can a Person With Dementia Sign a Contract?
For the most part, a person with dementia can sign a contract as long as they understand the nature of the document.
However, there may come a point where the person no longer has the capacity to sign a contract. If this is the case, any advance directives or Durable Powers of Attorney should be in place to help carry out the person’s wishes.
Can a Person With Dementia Sign a Will?
Testamentary capacity is the term that “…refers to the ability of a person to make a valid will.” – Cornell Law School
Again, as long as the person with dementia understands the nature of the document, they can sign a last will and testament. However, it would certainly be much better to have the will in place before the person’s cognitive abilities decline too much.
Can a Person With Dementia Sign a Living Will or Advance Directive?
Yes, a person with dementia can sign a living will or advance directive.
A living will is a directive that states what kind of medical care the person wants or doesn’t want in the event that they are unable to communicate their wishes.
Again, it would be more beneficial to have a living will or advance directive signed and in place as soon as possible.
Can a Person With Dementia Sign a Power of Attorney?
Yes, a person with dementia can sign a power of attorney.
What Happens if a Person With Dementia Refuses to Sign Documents?
If a person with dementia refuses to sign documents, there are still options available. For instance, you can ask a court to appoint a guardian or conservator.
A guardian is a person who is legally responsible for another person’s welfare. A conservator is a person who is legally responsible for another person’s property.
Appointing a guardian or conservator can be a long and complicated process. If you are considering this option, you should consult with an elder law attorney.
What if a Person With Dementia Has Already Signed Documents?
If a person with dementia has already signed documents, the documents may still be valid. Whether or not a document is valid depends on a number of factors, including the person’s mental state at the time they signed the document.
What Happens if a Person With Dementia Signs a Legal Document Without Understanding It?
If someone with dementia signs a legal document and then is found to be incompetent at the time of signing that document, then it becomes invalid.
The key here is the testing results to determine the level of competency. A doctor, psychologist, or other specialist will usually perform this test.
The test results will show whether the person was competent at the time they signed the document. If the person is found to be incompetent, then the document is invalid and can be disregarded.
It’s important to keep in mind that a person with dementia may be competent one day and incompetent the next. This is why it’s so important to have regular check-ups with a doctor or specialist to determine the status of competency.
What Other Documents Might a Person With Dementia Be Asked to Sign?
Other documents that a person with dementia may be asked to sign include:
- Powers of attorney
- Living wills
- Do not resuscitate orders
- Advance directives
- Trusts
- Contracts
- Loans
As with any legal document, it is important that the person understands what they are signing before they put their signature on the document.
Can a Person With Dementia Revoke a Document That They Have Signed?
A person with dementia can revoke any legal document that they have signed at any time, as long as they have the mental capacity to understand that they are revoking the document.
Who Can Help a Person With Dementia Understand Legal Documents?
If a person with dementia needs help understanding legal documents, there are a few people who can assist them. A close friend or family member can often provide the best support, as they can offer emotional guidance and understanding.
In some cases, it may be helpful to consult with an elder law attorney or financial advisor to ensure that all of the documents are properly filled out and that the person understands what they are signing.
Ultimately, it is important to make sure that the person with dementia feels comfortable with the decision they are making and that they understand all of the implications of what they are signing.
What Are the Risks of Letting a Person With Dementia Sign Legal Documents?
There are a few risks to consider before letting a person with dementia sign legal documents.
- First, the person may not have the capacity to understand what they are signing. This means that they may not be able to comprehend the implications of the document or make an informed decision about whether or not to sign it.
- Additionally, the person with dementia may not be able to remember what they have signed, which could lead to confusion or misunderstanding down the road.
- Finally, if the person with dementia changes their mind about the document after signing it, they may not be able to have it undone.
Before letting a person with dementia sign any legal documents, it is important to speak with their doctor or another medical professional to ensure that they have the capacity to understand what they are signing.
It is also important to make sure that the person with dementia is comfortable with the decision and understands the implications of the document. If there are any concerns, it may be best to have a lawyer or other legal representative present when the document is signed.
