If someone you love is showing signs of age-related cognitive deficits, it is time to ensure that their estate plan is up to date. This is because a person’s mental capacity is generally still intact at early stages, but it can decline over time. The sooner your loved one takes part in the estate planning or review process, the more likely their decisions will be honored by the courts.

Even if your loved one has already put an estate plan in place, now is a good time to ensure that all is as they intended.

The need for testamentary capacity

Legally, a person needs testamentary capacity in order to create or make changes to a will or estate plan. In general, this means that the person understands what is happening and why it is important. They must also be able to execute (knowingly sign) the documents.

If the person has been diagnosed with dementia or is showing advanced cognitive symptoms, they may lack testamentary capacity. Putting a plan into place at this stage could lead to a probate dispute.

If you have any concerns about your loved one’s testamentary capacity, discuss them with an estate planning attorney. Your attorney can explain the level of testamentary capacity required for each type of document, such as a will, power of attorney or healthcare directive.

An estate planning attorney can also help you obtain evidence of testamentary capacity in order to protect the estate plan from disputes. For example, you may wish to call in a doctor for an opinion of the person’s testamentary capacity. Or, your lawyer may create a list of simple questions to demonstrate their capacity.

If your loved one wants to bring an estate plan up to date, sit down and discuss their concerns. Make sure they fully understand the purpose of an estate plan and what choices they are making. Even if you are confident that they have testamentary capacity, you may wish to take steps to document that capacity.

Consider strategies that avoid probate

There are many estate planning strategies that may reduce or eliminate the need for probate. For example, a well-drawn living trust containing all major assets may be able to transfer assets from one generation to the next outside the probate process.

Assuming the person creating the trust (the “testator”) has testamentary capacity, setting up a trust could substantially reduce the chances for a probate dispute. The assets can be distributed at death much as they would be using a will.

Guard against undue influence and abuse

Every estate plan must be created by a person who is free from fraud, undue influence or financial abuse, but this issue is of particular importance when a person is showing signs of dementia. Unfortunately, there are those who take advantage of the kindness and wealth of vulnerable people. If your loved one intends to dramatically change their plans in favor of a particular person, you should make certain that person is not taking advantage.

What if my loved one lacks testamentary capacity?

If you are concerned that your loved one may not have the ability to understand the purpose and value of estate planning, you should proceed cautiously. There may still be legal steps you can take to protect your loved one and their assets.

For example, now may be the time to rely on the power of attorney and/or healthcare directive. However, depending on the person’s health and situation, including whether they have an estate plan, you may need a conservatorship. An attorney can help.