With a growing population of older people, the number of people with Alzheimer’s and dementia is growing. With that come challenges for New York estate attorneys when it comes to estate planning. Many people wonder when they get diagnoses of Alzheimer’s if they will be allowed to come up with an estate plan at all.
Testamentary capacity or the ability to sign a will is one of the lowest types of legal capacity. This is good news for many who are recently diagnosed with Alzheimer’s since it may mean that they still would be able to plan their estate and execute a will as long as they meet all of the requirements. The law also recognizes that someone with dementia may have a good or a bad day, meaning that steps can be taken to make sure that it is documented that someone is having a lucid, good day when they sign their will, reducing the chance of a successful argument that they were not capable of signing.
In order to have testamentary capacity, a person must understand that they are signing a will and what a will basically does. That person must also have a general idea of what their property is. An example of this is knowing they own a house but not the exact contents of portfolios and such. The person signing his or her will must have an idea of who the “objects of their bounty” are, or who their heirs are.
Even if a person is diagnosed with Alzheimer’s, they would be allowed to sign a will and that will would be a valid one. This would be the case even if the testator was under guardianship. However, in such a case, it is likely that some additional steps would be taken to be sure that the mental capacity of the testator is documented on the day the will is executed.
One likely thing a New York estate attorney would do would be to have a medical doctor do a consultation with the patient at the time of the will signing to determine his or her mental status that day. It is likely that this, and the execution of the will would be filmed by a videographer as evidence that the testator had capacity when signing the will. This would be in addition to the normal witnesses.
The key to coming up with an estate plan when diagnosed with Alzheimer’s is to do it early, before the disease escalates further and it becomes more difficult to have a day where you are capable of signing a will. This means that planning needs to be one of the first things that you do when you get your diagnosis. If you would like to talk to me about your options, give me a call at (212) 233-1233.