May Someone With Dementia Sign a Will?

The Elder Law Minute TM

 

May Someone With Dementia Sign a Will?

By Ronald A. Fatoullah, Esq

Millions of people are affected by dementia, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to sign a last will and testament or other documents, but certain criteria must be met to ensure that the signer is mentally competent.

Many family members or friends discourage those with dementia from seeking legal advice because they feel that the person is not capable of doing planning or executing documents. In many instances that is not the case and the individual does, in fact, have enough mental capacity to sign a will. However, in some circumstances an individual is clearly incapacitated and a guardianship proceeding may be required in order to obtain the appointment of a guardian to manage the individual’s affairs. If a person is deemed to be incapacitated he/she clearly cannot execute a will.

In order for a will to be valid, the person signing must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.

Generally, you are considered mentally competent to sign a will if the following criteria are met:

  • You understand the nature and extent of your property, which means you know what you own and how much of it.   
  • You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.  
  • You understand what a will is and how it disposes of property.  
  • You understand how all these things relate to each other and come together to form a plan.

Family members may contest the will if they are unhappy with the distributions and believe you lacked mental capacity to sign it. In addition, a will can be contested if “undue influence” was exerted on the signer of the will. If a will is found to be invalid, a prior will may be reinstated or the estate may pass through the state’s intestacy laws (as if no will existed). To prevent a will contest, your attorney should help make it as clear as possible that the person signing the will is competent. The attorney may have a series of questions to ask you to assess your competency. In addition, the attorney can have the will signing videotaped or arrange for witnesses to speak to your competency. In any event, New York law requires that at least 2 individuals witness the signing of a Last Will & Testament.

Ronald Fatoullah is a leading expert in the fields of elder law & estate planning. He is the founder and managing attorney of Ronald Fatoullah & Associates, a law firm concentrating in elder law, estate planning, Medicaid eligibility, special needs, trusts, guardianships, & probate. He is certified as an elder law attorney by the National Elder Law Foundation, and he is the current Legal Committee Chair of the Long Island Alzheimer’s Association.  The firm’s offices are conveniently located in:  Queens, Long Island, Manhattan & Brooklyn and can be reached at: 1-877-ELDER LAW or 1-877-ESTATES.

Authored by: Ron Fatoullah

Ron Fatoullah- Esq.

For more than 30 years, Ronald Fatoullah & Associates has been providing New Yorkers with legal advice that transcends traditional ways of thinking.

The firm’s attorneys are accomplished in Elder Law, Estate Planning, Medicaid Eligibility & Applications, Special Need Planning, Preparation of Wills & Trusts, Planning for Same Sex Couples, Long Tern Care, Guardianships, Veteran's Planning, Real Estate & Probate.

To help encourage the public to plan ahead, Mr. Fatoullah is a familiar face on the lecture circuit, and lectures frequently on elder law, estate planning and special needs. He is an in-demand consultant to attorneys, accountants, social workers, hospital administrators, financial planners, and to numerous organizations and corporations. He has an eight year inclusion in New York Magazine as "One of the New York Area's Best Lawyers®" in the fields of elder law, trusts and estates, and a five year inclusion in the New York Times Magazine, as a “Superlawyer”, in the fields of elder law and estate planning. Attorney Fatoullah is the co-author of the “CPA’s Guide to Long Term-Care”, published by AICPA, and he has been quoted in the New York Times, Newsday, USA today, The New York Law Journal, The Wall Street Journal, and various additional publications. His column,“The Elder Law Minute™ is published in the Queens Courier Newspaper, and he currently teaches elder law and estate planning courses.http://elderlaw-newyork.com/index.html

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