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Dementia and testamentary capacity: 3 things to know

In order to execute a valid will or estate plan, the testator must have the mental capacity to do so. Colorado Statute 15-11-501 puts it this way: “An individual eighteen or more years of age who is of sound mind may make a will.”

What does it mean to be “of sound mind,” however, at a time when so many aging people develop some form of dementia?

In this post, we will seek to help elderly people and their children get a better understanding of what dementia is and how it relates to estate planning.

Dementia is a broad term that is not synonymous with Alzheimer’s disease. It also includes a variety of other disorders and conditions.

Linguistically, the word dementia derives from a Latin word meaning madness (insanity) or being out of one’s mind. Today, however, the term is more inclusive. It refers also to chronic cognitive problems and memory deficits associated with several different conditions.

Alzheimer’s disease is one of the most serious of these conditions. Nearly half of Americans who live to the age of 85 will be diagnosed with Alzheimer’s, which can cause the people who suffer from it to become unable to recognize even their closest loved ones.

Somewhere between 60 to 80 percent of dementia cases involve Alzheimer’s. But dementia can also be caused by other conditions, including Parkinson’s disease and Huntington’s disease. In addition, strokes can result in vascular dementia.

In short, dementia and Alzheimer’s are often connected but are by no means synonymous.

Symptoms of dementia vary from case to case. But there are several common cognitive and psychological changes to look for.

Memory loss is of course one of the most common symptoms of dementia. This certainly does not mean that having a so-called “senior moment” necessarily indicates dementia so severe as to warrant a diagnosis.

Often, however, there are other cognitive changes other than memory loss that associated with dementia. These changes could involve confusion, problems with making decisions or difficulty managing tasks.

To address the possibility of this occurring, it often makes sense to consider making a power of attorney part of an estate plan. With a power of attorney in place, there is someone authorized to act on the other’s behalf to carry out tasks such as money management.

Psychological changes can also be symptoms of dementia. These changes can include depression, anxiety, paranoia and changes in personality.

Uncertainties over a parent’s dementia can call the validity of an entire estate plan into question and lead to litigation.

The presence of some degree of dementia does not necessarily make someone unable to create a valid estate plan. But it can cause uncertainty about the plan’s legitimacy and open the way to possible estate litigation based on allegations of lack of capacity or undue influence.

This is especially true in emotionally charged family settings. For example, suppose a sibling took on the role of caregiver for an aging parent struggling with dementia symptoms. Other siblings could suspect the caregiving sibling of trying to exert undue influence on the parent.

To make a scenario like this even more difficult, symptoms of dementia may occur many months before doctors make a diagnosis of dementia.

 

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