Imagine you just received the news that your father has been diagnosed with dementia. You’re probably trying to figure out how to navigate this new reality. You may be contemplating the need for long-term care, or figuring out how you can carry the responsibility on your own. You start thinking about their finances, and what outstanding bills need to be paid. And then you find out that your father’s estate plan hasn’t been updated in years. Are you able to legally assist your father even though he might not be of sound mind to speak for himself?
The time to act isn’t now—it’s before the situation arises. It’s before your father loses the ability to ensure someone he trusts can make decisions on his behalf. While a dementia diagnosis doesn’t automatically mean a person can no longer make their own decisions, it’s imperative a plan is in place before it’s too late. So, what does Alabama law require for someone to sign legal documents? And what happens if you’ve run out of time?
The Legal Standard: It Depends on the Document
Of course, it’s best to review your estate plan every 3 to 5 years, or upon a significant life event such as divorce, marriage, and death. However, if you or a loved one has been diagnosed with dementia, it’s time to update your estate planning documents. In Alabama, legal capacity is document-specific, and the situation can vary depending on the current state of the person with dementia.
If a will needs to be revised, the individual with dementia needs to be of testamentary capacity, meaning they must understand the nature and extent of their property, who their natural heirs are, what a will does, and how all of these relate to each other at the moment of signing.
For documents such as a power of attorney, trusts, and deeds, the individual with dementia generally needs to be of contractual capacity, meaning they must understand the nature and consequences of what they are signing.
Here’s a breakdown of legal documents that may need to be reviewed upon a dementia diagnosis:
Last Will and Testament: This document requires testamentary capacity, meaning the person must be of sound mind.
Durable Power of Attorney (Financial): While this document grants authority to a trusted individual, the person must sign this document before losing capacity. In Alabama, a durable POA survives incapacity, making it one of the most urgent documents to have in place. Failure to do so could involve the pursuit of guardianship or conservatorship through the Alabama probate court.
Healthcare Proxy/Advance Directive: The individual must be competent upon revision of this document.
Revocable Living Trust: This document can be created in the early stages of a dementia diagnosis as long as capacity is confirmed. A revocable living trust avoids probate and makes asset management easier if the grantor later loses capacity
When Planning Wasn’t Done in Time
If your loved one can no longer sign legal documents, the road ahead is much trickier to navigate. You may either explore a guardianship or conservatorship. A guardianship means the court decides who has authority to make personal and medical decisions on their behalf. A conservatorship means the court appoints an individual to make financial decisions. The court doesn’t know your loved one like you do, and may not always make the decision that your loved one would have wanted. By having the proper legal documents in place before a situation like this arises, you can make sure that the appropriate individual has your loved one’s best interest at heart.
Signs It’s Time to Act — And How We Can Help
If your loved one is starting to show early signs of dementia—such as forgetting appointments, struggling to perform daily tasks, and showing changes in their personality—contact an estate planning attorney who can ensure their legal documents are properly updated to address any changes that come with this transition. Working with an estate planning attorney can help prevent family arguments, knowing that your loved one’s wishes will be properly reflected.
At Miller Estate and Elder Law, our Dementia Care Navigation service is designed to give families a roadmap so they don’t have to face the unknown alone. This service includes financial planning, legal support, family support, care advocacy, medical support, and assistance with transitions. The earlier you act, the more options you have to protect your family. Contact us today to get the conversation started.