Capacity to make legal plans after Alzheimer’s diagnosis

This column first appeared on the Express-News MySA website on December 15, 2014.

Dear Mr. Premack: My wife has early stage Alzheimer’s. She is wearing a patch so is still functional. We have rent houses and oil interests. Although we made Wills years ago when our children were young, because we have been busy with the business of living we never updated them. Is it too late? – JE

Your assessment that your wife is “still functional” is quite important but not the final word. Her diagnosis with Alzheimer’s disease is not the end of her legal rights nor of her ability to think for herself. She must be assessed at the time she is taking action, and must meet the legal standards for capacity. For making her Will, the legal standard is called “testamentary capacity.”

She is required to have sufficient mental ability to understand she is making a Will, the effect of making a Will, and the general nature and extent of her assets. She must also know who is in the family and must have sufficient memory to remember these elements long enough to form a reasonable judgment about them.

Does her Alzheimer’s’ mean she is automatically considered to lack testamentary capacity? No. The Texas Supreme Court has ruled that, “The proper inquiry in a Will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the Will was executed.” The courts are reluctant to look beyond the person’s behavior on that particular day unless there is evidence of an ongoing mental illness which has not varied over a lengthy time period. Alzheimer’s is certainly an ongoing mental illness, but it is not automatic disqualification.

The courts presume the elderly are competent until proven otherwise. In one case, a stockbroker assisted an elderly client transfer stock to her nephew. Her niece argued that because of the client’s age alone the broker should assume she would not understand the transaction. The court ruled that there is no responsibility on the part of service providers to determine the competence of their clients, and that the elderly are not presumptively incompetent.

The court stated that, “A service provider should not be put to choosing between refusing to assist an elderly person with legitimate transactions and incurring liability for providing such assistance when the provider lacks any qualification for determining competence.” Thus, age alone does not create a presumption of incapacity. Likewise, Alzheimer’s does not create a presumption of incapacity; a person must be assessed as to their capacity at the moment she is taking action.

Engage the services of an experienced Certified Elder Law Attorney, who will be able to express an opinion on your wife’s capacity. If the attorney reasonably believes that your wife lacks legal capacity, the attorney can refuse to provide the legal services. On the other hand, the attorney may legally assist her in fulfilling her desire to act. The attorney’s opinion on capacity may impact the validity of her documents if challenged in the future, but does not guarantee her Will is going to be upheld if there is a contest.

If your wife does lack capacity, another option – if she already signed a valid Durable Power of Attorney that contains proper authorization – is to create a Living Trust. You can be the sole creator of the Trust, yet allow the Trust to be for the benefit of both you and your wife. You can use the Durable Power of Attorney to move assets into the Trust, thus providing management of the assets while you and she are alive and distribution of the assets after both of you have died.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and business entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

#alzheimers #Capacity #DurablePowerofAttorney #LivingTrust

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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