1.16.20 ‒2.4.20 ‒ vol. 16

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Capacity to Sign Estate Planning Documents

By Bernard A. Krooks, Certified Elder Law Attorney


Every day, more than 10.000 Americans reach the age of 65.  Unfortunately, quantity of years does not necessarily equate to qualify of life.  In fact, the golden years may turn out to be not so golden.  As the size of the over-65 population continues to increase, the number of Americans with Alzheimer’s disease or other dementias will increase. Currently, there are more than 5.8 million Americans living with Alzheimer’s disease.  By 2050, that number is expected to triple.


Thus, if you have been waiting for the “right” time do take care of your estate planning, perhaps you should move that up on your list.  A certain level of capacity is necessary in order to sign estate planning documents.  Once you no longer have the requisite capacity, you will not be able to complete your estate plan.  So, the question becomes: can someone living with Alzheimer’s disease or dementia legally sign these documents?  Well, the answer is that it depends.  While a diagnosis of dementia may indicate some level of diminished capacity, it does not necessarily mean that person cannot sign legal documents such as a will, trust, or power of attorney.  There are different stages of dementia and as the disease progresses, the person’s ability to execute legal documents will likely diminish.


Here’s what I mean:


Someone with a mild cognitive impairment can usually live independently, although there may be memory problems.  Nevertheless, this person should be able to sign legal documents.  A person with mild dementia is someone who may experience impaired memory and thinking skills.  This person may no longer be able to live independently and will probably need assistance with some activities of daily living such as bathing, dressing, toileting etc.  Fortunately, this person may still have legal capacity.  However, someone who needs assistance with most activities of daily living and has more severe memory loss and perhaps difficulty in communicating may or may not have capacity to sign legal documents.  At this point, making sure all legal documents are in order is of paramount importance since once the disease progresses to severe dementia, it is very unlikely that the requisite capacity will exist to execute legal documents.  This stage of the illness is typically manifested by sever communication problems and inability to perform any activities of living.  Unfortunately, this stage may be followed by profound dementia where the person is basically bedridden and certainly cannot execute any legal documents.


Generally speaking, capacity is usually analyzed situationally. That is, the question will be answered differently depending on the nature of the document and the circumstances of the signing. The general rule: the signer must have sufficient understanding to know what the document is, and the effect of the signing.  Each of those situations, and the dozens of others that might arise, will be judged differently, because the nature and effect of the act will be different.


There are few legal ways to determine capacity in advance. Some argue whether it is a legal or medical determination.  Challenges to capacity are almost always initiated after the signing is completed -- and often after the signer has died, or becomes completely and undeniably mentally incapacitated. That means that evidence of capacity (or lack of capacity) is often being reconstructed well after the fact.


It’s also important to remember that we are writing here about capacity, and not necessarily about the validity of documents signed by someone with dementia.  It is entirely possible that although someone with dementia has capacity to sign a will, that they were unduly influenced by someone else when signing their will. There is a difference between capacity on the one hand, and undue influence on the other. Dementia might make a given signer incapable of signing a document, or their capacity may be sufficient to sign. But that same person might be made more susceptible to undue influence because of their dementia.


So, in the spirit of the new year, take the time to think about your estate plan and execute the necessary documents to make sure that it will be implemented as you envisioned when the time comes.  Although Mick Jagger and the Rolling Stones once said, “Time is on your side,” that may not be the case when it comes to your estate planning.


Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP and has been honored as one of the “Best Lawyers” in America for each of the last seven years. He is past President of the National Academy of Elder Law Attorneys (NAELA) and past President of the New York Chapter of NAELA. Mr. Krooks has also served as chair of the Elder Law Section of the New York State Bar Association. He has been selected as a “New York Super Lawyer” since 2006. Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.elderlawnewyork.com.