Can My Parent Who Has Dementia Sign a Legal Document?

The prevalence of dementia in our aging population makes this question extremely relevant for a great many of us. At Surprenant & Beneski, many of our clients in Southeastern Massachusetts and on Cape Cod are dealing with the complications that arise when an elderly relative with dementia has left legal steps untaken.

Our elder law practice has in-depth knowledge and extensive experience in this area. Contact us so we can assist you. The sooner you begin to tackle this challenge, the easier it will be to handle.

Defining Dementia

Dementia is a condition in which there is a gradual deterioration of cognitive function that goes beyond what is expected due to normal aging. Patients with dementia suffer increasing memory loss, inability to process thoughts clearly, lack of comprehension, judgment, and ability to learn. All of this results in disorientation and confusion.

Functioning Varies Substantially Depending on the Stage of Dementia

It even varies according to the time of day. While millions of individuals in the US are presently afflicted with dementia due to Alzheimer’s disease, cardiovascular disease or other causes, not all of them are out of touch to the same degree. 

It is important to be aware of the early signs of dementia, not only because in some cases medications may ease symptoms, but also because patients with early stage dementia will be more coherent and more able to work with loved ones to plan for the future.

While those in the early stages of dementia may behave oddly or uncharacteristically once in a while, those in the final stages of the condition may not remember their own family members or forget how to swallow. This is why it is essential to work with a well-credentialed elder law attorney as soon as a diagnosis of dementia is made.

How Massachusetts Determines Testamentary Capacity

“Testamentary capacity” is a legal term meaning that a person has the mental capability to act legally and make rational decisions on her own behalf regarding financial matters and medical treatment. The law recognizes that testamentary capacity is not a black or white issue: “diminished capacity” is considered the gray area between full capacity and incompetence.

It is also important to be aware that cognitive fluctuations are not only possible with dementia patients, but anticipated. For this reason, an individual with dementia may be legally competent to sign a will in the morning, yet completely disoriented the following evening. In such cases, the will, created during a period of clarity, will remain legally valid.

Massachusetts law holds to the principle that testamentary capacity requires that a person:

  • Understands the extent of his property
  • Knows which persons have legal claims to the property
  • Is clear on the meaning of the act of executing a will 

Different Standards for Different Legal Documents

For healthcare decisions, the standard is slightly lower than for a will since all the individual has to know is that she is naming a person they trust to make decisions they are unable to make independently. On the other hand, to agree to a contract, including marriage or divorce, the individual must legally be able to transact business and manage financial affairs.

It Pays to Take Action as Soon as Possible

The fact that your loved one, who has been diagnosed with dementia, is now capable of signing legal documents does not mean he/she will retain this ability for any period of time. She may be able to sign in spite of her diagnosed infirmity as long as she shows convincing evidence of her ability to understand what she is signing. In some cases, a doctor’s testimony that the patient is competent to sign the document is enough to prevent it from being contested in the future.

The Law Provides for Mental Incapacity

If your loved one has already passed the point of no return and is clearly incapable of clear thought, your family will have to go through the courts to process a guardianship or conservatorship so that a family member can take over decision-making and the signing of legal documents. Of course, it is wise, if possible, to deal with the dementia at an earlier stage so that you can establish a trust for your relative’s care or have your still capable loved one give you power of attorney and/or sign a healthcare proxy.

Contact Our Experienced Elder Law Attorneys Today

Your best course of action with a loved one with dementia is to be proactive. Contact one of our compassionate, highly skilled elder law attorneys now to find out your options.