Marietta Estate and Elder Lawyer: Can Someone with Signs of Dementia Sign Legal Documents?

Marietta Estate and Elder Lawyer: Can Someone with Signs of Dementia Sign Legal Documents?

Millions of individuals are affected by dementia in their lifetime. Unfortunately, it is usually after a medical crisis like dementia hits that many families begin to think about estate planning, and talking to their Marietta Estate and Elder Lawyer.

What people don’t realize, however, is that it may be “too late” under the law to make a plan after dementia strikes.  This is usually the case when dementia is in an advanced state. In order for legal documents to be valid in Georgia, the person signing them must have “testamentary capacity.” This means that he or she must fully understand the implications of what is being signed.

Does that mean that your loved one can no longer sign legal documents after a diagnosis of dementia? Not necessarily.  Dementia is a progressive condition, and mental capacity can be fluid in earlier stages.  Your loved one may still be considered mentally competent to sign legal documents, even with a diagnosis of dementia if he or she:

  • Can understand the nature and extent of their property
  • Can remember their relatives and descendants
  • Is able to articulate who should inherit their property
  • Can understand what they are signing
  • Can understand how all these things relate and come together to form a plan

In some instances, a verification from a physician about the individual’s competence may be required and the ability of whether a person with dementia can sign legal documents will rest in the doctor’s hands.

If the physician determines that your loved one cannot execute legal documents, the family must then turn to the court system, and likely the process of Guardianship and/or Conservatorship, in order to take over control of the senior’s affairs in the absence of a current Trust, Power of Attorney, or Health Care Directive. 

Whether your loved one can sign legal documents following a diagnosis of dementia really depends on his or her individual battle with the disease.  Talk to a Marietta estate and elder lawyer, as well as your loved one’s doctor for an idea of what your options may be.  Be sure to go through all the proper channels as your loved one’s legal documents could be contested later on if you have them quickly signed while there is still a question of mental capacity out there.

If you need assistance getting started and evaluating your loved one’s situation, we invite you to contact our Marietta GA estate and elder law attorneys at 770-425-6060 to schedule a consultation.

 

 

 

What Is Undue Influence? | East Cobb Estate Planning Lawyer

What Is Undue Influence? | East Cobb Estate Planning Lawyer

As an East Cobb Estate Planning Lawyer, I occasionally deal with charges or concerns about undue influence over a person signing a will or other estate planning documents. Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive or accompany you to the attorney’s office. You can also get a formal assessment of your mental capabilities done by a medical professional before you draft estate planning documents.

SOURCE: ElderLawAnswers.com

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