Important Legal Documents to Have Before Dementia Sets In
May 8, 2023
In order to create a valid will in California, the testator must have testamentary capacity. In addition, the person must be able to identify their assets and property and know their relationship with potential beneficiaries and heirs. However, different challenges usually arise when a loved one in the early stages of dementia or cognitive impairment wants to create a will or estate plan. Hence, it is crucial to ensure that the person is mentally competent to get their estate plan in place.
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Cognitive Impairment and Legal Capacity
According to California law, only a testator with "testamentary capacity" may be eligible to execute a valid will, trust, or estate plan. Furthermore, a person has testamentary capacity if he or she is of sound mind and able to:
understand the nature of the testamentary act;
understand that they are creating a will;
understand and recollect the property and assets they own; and,
understand and remember their relation to beneficiaries, heirs, and other family members affected by the will.
However, testamentary capacity often decreases with cognitive impairment, and time is of the essence. Dementia or Alzheimer's disease patient may suffer reduced thinking ability, unclear thinking, and memory loss. Over time, the person gradually becomes of an unsound mind and will be unable to create their will.
Hence, once your loved one starts showing early signs of cognitive impairment or incapacity, you need to initiate the topic of estate planning. A seasoned estate planning lawyer can offer you some useful tips to facilitate the conversation and educate you about some important documents to put in place.
Important Documents to Have in Place
Here are some important estate planning documents to have in place once you notice early signs of cognitive impairment or dementia:
A will can be described as a legal document which allows a person to provide specific instructions about how their assets and property should be managed, distributed to loved ones, or disposed of upon their death.
A living trust is a fiduciary arrangement whereby someone authorizes another person to hold the trust assets until a future date for the benefit of the beneficiaries. Upon the trustor's death or incapacitation, the trustee will administer the trust according to the instruction provided in the trust documents.
Advance Healthcare Directive
An advance healthcare directive is a written document which allows a person (the principal) to state their preferred medical treatments and procedures, in advance, in the event of a disability, incapacitation, or severe illness which makes them unable to make their healthcare decisions.
Durable Power of Attorney
A durable power of attorney document allows a person (the principal) to transfer legal authority and power to another person (the agent) who can make proxy decisions on behalf of the principal in certain legal, financial, tax, health, and property matters if the principal is unable or unavailable to act.
Do Not Resuscitate Order
A do not resuscitate order is a written document that can be used to provide instruction for physicians and healthcare providers not to perform CPR or resuscitate a person if their heart stops beating or they stop breathing.
Disposition of Remains
The disposition of remains document allows a person to specify their preferred final arrangements and how their remains should be managed or disposed of following their death.
Get Experienced Legal Support
In the early stages, a person with cognitive impairment or dementia would still be considered to be of sound mind. Hence, time is of the essence, and you need to help them create their estate plan right away. At the Law Office of Robert L. Firth, we have devoted our career to offering outstanding legal services and helping clients with dementia draft their wills and estate plans.
Our trusted attorney will work together will a qualified physician to determine that they have the testamentary capacity to make their will. In addition, we will work intelligently to address your loved one's needs and concerns, help them draft vital estate planning documents, and outline a strategic plan to protect their accumulated asset and wealth.
Contact us at the Law Office of Robert L. Firth today to schedule a simple consultation with a dedicated estate planning lawyer. Our trusted attorney can offer you the personalized legal counsel and reliable advocacy you need to help your loved one put their final affairs in order. We proudly serve clients across Cathedral City, Desert Hot Springs, Palm Springs, Rancho Mirage, and Palm Desert, California.