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Palm Springs Law Blog

Wednesday, February 17, 2021

What Can You Do for a Loved One with Dementia Who Doesn’t Have a Will?

While it’s always in your best interest to begin estate planning sooner rather than later, sometimes it doesn’t always happen. So what happens if you have a loved one who lacks a Will or a Trust but is currently diagnosed with dementia?

In order to create an estate-planning document of any kind, it’s required that the individual doing so have the necessary mental capacity. When someone has dementia, it qualifies as a mental defect that could diminish his or her legal capacity.

The first thing that you need to concern yourself with is whether your loved one has enough capacity to create a valid Will or Trust. It’s important to note that the required capacity differs depending upon which type of estate planning document you wish to create. In other words, a Will requires a lower capacity than a Trust does.

Capacity Requirements for Will Creation

According to California’s probate law, the requirements for someone to have the capacity to create a Will include the following:

  1. He or she is at least 18 years old; and
  2. He or she understands:
    • The nature of his or her property;
    • His or her relationship with relatives; and
    • He or she has a general outline of his or her assets.

Therefore, someone who is suffering from dementia may actually have sufficient capacity to create a Will as long as he or she meets each of these requirements. You can establish this by speaking with your loved one’s treating physician.

However, since dementia is a disease that can differ from one day to the next, your loved one could have the capacity to create a Will today but could lose that capacity tomorrow, and then have the capacity once again the following day. It’s important to note that most cases of dementia will still progress and worsen over time.

Capacity Requirements for Simple Trust Amendments

State law also says that simple amendments to one’s Trust have the same capacity requirements as Wills. Therefore if someone has the capacity to create a Will, he or she also has the capacity to create a simply Trust amendment. Once again, it’s important to understand that capacity can change from one day to the next.

Capacity Requirements for Trust Creation

To create a Trust though, the requirements for capacity are more stringent. In order to have the capacity to create a Trust, an individual must understand and appreciate:

  1. The rights and responsibilities created by the Trust;
  2. The probable consequences to him or herself and others; and
  3. The significant risks and benefits.

Since these requirements are more in-depth they require a higher mental capacity than that of Will creation. As with a Will, a loved one’s treating doctor must provide a diagnosis to determine that he or she can meet all of these requirements to create a Trust.

What Happens if Your Loved One Doesn’t Have the Capacity for Estate Planning?

If your loved one suffers from dementia and is unable to meet the capacity requirements for either a Will or a Trust, there is still the option of seeking what is called “substituted judgment.” Under state probate law, a person with an interest in the estate can ask the court to order a conservator to take specific actions such as the creation of a Trust. After a successful conservatorship proceeding, the court can create a Trust on behalf of the conservatee.

If you are unsure as to your loved one’s mental capacity due to his or her dementia, it’s best to begin by working with his or her physician to determine the level of capacity that he or she has.

Heritage Legal, PC Helps Those in California with their Comprehensive Estate Planning Needs

A qualified estate-planning attorney can listen to your wishes, provide legal advice, and assist you in the development of an estate plan that protects not only you but also your loved ones.

At Heritage Legal, PC, we understand the importance of protecting those whom you care about most and helping to ease the burden on your family. We can help you to create a comprehensive estate plan that fills all of your wishes. To learn more or to schedule a free consultation, contact us today!


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