One of the largest challenges in the modern practice of elder law and estate planning consists of issues surrounding capacity to sign documents. Our population is living longer than ever before and we now have one of the largest senior populations of all time. This number is expected to exponentially grow as the Baby Boomers enter retirement and technology/ health care continue to advance. Some health care professionals see these factors coming together to create a potential “dementia epidemic”. For an Elder Law Attorney, it is important to create and execute legal documents before advanced health conditions affect an individual’s ability to understand what he/she is signing.

In deeming a person to be competent or to have capacity, lawyers and judges apply various legal thresholds on a case-by-case basis. Even though the specific descriptions of legal capacity vary from state to state, the typical requirement is that the person signing the instrument must understand the purpose of the document and be able to make a rational decision in regard to the document at the specific time they sign them. In the case of a Will for instance, a person should be able to understand generally what assets he/she owns and who would naturally receive these assets upon the person’s death. If a person lacks this generalized level of capacity, he/she may not be able to make a Will. The level of capacity is different for signing contracts, transferring property, getting married or divorced or even driving a car.capacity to sign estate planning documents

Those who have loved ones with Alzheimer’s or other types of dementia know that they go through good days and bad days. This is one of the most important areas of capacity to understand; it is not “all or nothing”. While bad days are expected in such situations, a person suffering from dementia or Alzheimer’s can still experience times of absolute clarity. Merely suffering from such a disease does not permanently take this person’s capacity to make legally binding decisions away from them. Therefore, a person may lack capacity to sign a document one day and regain lucidity another. In fact, in Minnesota an adult is presumed to have mental capacity until a court determines otherwise.

If you are in a situation where your loved one has diminished capacity and needs to sign estate planning documents, NEVER do so without consulting an Elder Law Attorney. An Elder Law Attorney has the knowledge and experience to work through such a situation in a way that is more likely to lessen the chance of litigation and avoid other legal pitfalls. If you have questions about your loved one’s capacity to move forward with the estate planning process, contact the office of a local Elder Law Attorney for information relevant to your particular situation.