Last week, we started our discussion on estate planning for a loved one with a dementia diagnosis part 1 (click here to read).  In that article, we covered: 

• What it means to have mental capacity or to be incapacitated 
• How dementia affects capacity for estate planning purposes 
• The essential estate planning tools a person with dementia needs to create right away 

However, as dementia progresses, estate planning must become more proactive and strategic to avoid court and conflict over your loved one’s wishes. If dementia becomes too advanced before planning is complete, the question of who will manage your loved one’s assets and care will be left to a judge who doesn’t know your loved one or their wishes. 

Keep reading to learn what steps need to be considered when planning for someone with more advanced dementia. 

Get A Cognitive Evaluation 

If your loved one’s cognitive ability or legal capacity is in question in any way, a professional evaluation is a proactive and prudent step to determine your loved ones’ options when it comes to estate planning. Schedule an appointment with your loved one's primary care physician, or a specialist in dementia care, to make a recommendation on your loved one’s ability to make estate planning decisions and legally sign on their own behalf. 

During this evaluation, the medical professional will talk to your loved one and ask them questions about their everyday life, their circumstances, and what they would do in certain situations. Your loved one doesn’t need to remember every detail about their life or historical facts. The professional will be assessing your loved one’s ability to analyze a scenario and make a thoughtful decision on how to respond. For example, your loved one might have trouble remembering exactly what day of the week it is but may remember how to handle a crisis and that they shouldn’t open the door for a stranger. 

Receiving a report from your loved one’s doctor stating they have the cognitive ability to make estate planning decisions (at least when they are in a lucid state) protects their ability to create and sign an estate plan to address their finances, healthcare and this report will remove any doubt on whether they had had the ability to plan in the first place. 

Let Your Loved One Meet With Their Lawyer Privately 

If possible, allow your loved one to meet with their lawyer independently. A private meeting between your loved one and their lawyer will provide them with the opportunity to express their wishes without influence. Naturally, if hearing and memory issues are setting in, you’ve grown accustomed to helping them with their appointments, but this is one instance where it would be wise to remain in the waiting room.  Independence and a private meeting between your loved one and their lawyer will remove any presumption of improper influence, simply because of you sitting in on the meeting. 

Even if they would prefer to have you present during the meetings, encouraging your loved one to have private conversations with their lawyer helps avoid any question about whether there was any influence on their estate planning decisions.   

If it isn’t feasible for your loved one to have an entire meeting with their lawyer alone, make sure they at least have opportunities to talk to their attorney in private by leaving the room while your attorney confirms their wishes.  It would also be wise to document when your loved one meets alone with their lawyer and ask their lawyer to do the same. 

The Importance of Signing an Estate Plan Carefully & Correctly 

Unfortunately, errors can occur at the time an estate plan is signed. Every state has different laws for how estate planning documents must be signed, and what witnesses or notaries are required to make the document legally valid. 

If your loved one’s plan isn’t executed properly and the mistake isn’t caught until after they’ve lost capacity, it can result in your family needing to involve a judge to weigh in on whether the estate plan is in fact valid. This creates an opportunity for the judge to set the plan aside, but it also invites the opportunity for family members to question whether your loved one had the mental capacity to create the plan at all. 

It’s also essential to document your loved one’s capacity at the time the estate plan documents are signed. Make sure that their lawyer documents that they were aware of what they were doing that day, that they carefully review the documents with your loved one before they sign them, that the documents reflect your loved one’s wishes, and that your loved one is creating the plan of their own free will. 

If you have any concerns about other family members questioning your loved one’s estate planning decisions or mental state at the time, ask your loved one and their attorney if they could record the signing meeting, or some portion thereof, to dispel any claims that your loved one was coerced into planning or didn’t know what they were doing that day. 

Conclusion 

If your loved one received a dementia diagnosis and hasn’t addressed their legal affairs by getting a plan in place - don't worry - but act fast. Even in the advanced stages of dementia, individuals may have days and moments when they are lucid and can legally make the decisions necessary and sign their estate planning documents.  However, due to the progressive nature of dementia, time is of the essence to create an estate plan, and the sooner your loved one acts to get a plan in place, the easier it will be for them to get the help they need as their condition progresses. 

In cases where your loved one’s capacity is severely diminished and estate planning hasn’t been completed, your family will need to pursue guardianship over your loved one in court. This legal arrangement involves a court appointing a legal guardian who assumes responsibility for making decisions on behalf of the person with dementia. This process can be stressful, and it’s possible the court will appoint someone your loved one never would have wanted to manage their assets or healthcare decisions. 

To make sure your loved one’s wishes are documented before it’s too late, I invite you to book a  
Family Wealth & Legacy Strategy Session™ with my office today. Our team is dedicated to providing compassionate guidance and legal expertise to ensure the well-being and wishes of your loved one are preserved. 

P.S. - If you enjoyed reading this article and made it to the end, please leave a comment and let us know your thoughts and your biggest takeaway. If you think your family and friends could benefit, please share it on social media to spread the word. 



This article is a service of Family Wealth & Legacy Legal Solutions (FWLLS). At FWLLS, we do not just draft documents; we ensure you make educated, informed and empowered decisions for yourself and the people you love. That's why we offer a Family Wealth & Legacy Strategy Session™, during which you will get educated and begin to prepare to avoid life’s most common legal problems and get a plan in place to make the best possible choices for the people you love. You can begin by calling our office today to schedule a Family Wealth & Legacy Strategy Session and mention this article to find out how to get this $750 session at a significantly discounted rate, or even for free.