This is the nature of dementia. So how do we know if a person with dementia can sign legally binding agreements that include a will or trust? The answer to this question is almost exclusively specific to the facts of the case. For this reason, it is one of the most confusing and contentious areas of an estate and fiduciary practice. It is also important to remember that we are writing here about capacity and not necessarily about the validity of documents signed by a person with dementia. It is quite possible that although a person with dementia has testamentary capacity, they were too influenced by someone else when signing the will. There is a difference between capacity on the one hand and undue influence on the other. Dementia can prevent a particular signer from signing a document, or their ability to sign is sufficient. But the same person could be made more vulnerable to inappropriate influence due to their dementia. Millions of people are affected by dementia in their lifetime.

Unfortunately, it`s usually after a medical crisis like dementia that many families start thinking about estate planning. On the one hand, the Health Act specifies specific criteria to determine if you are able to sign a precautionary power of attorney. On the other hand, one “assumes” that one has capacity unless one has been found to be incompetent. These two provisions may not be compatible. The Arizona Supreme Court last reviewed testamentary capacity in 1973. In this case, the Court described the woman who signed a will as follows: As long as the person with dementia has legal capacity (the ability to understand and appreciate the consequences of their actions), they should be involved in legal planning. In another case in Arizona, the will of a man with an intellectual disability was maintained, even though it would have worked mentally as a 10- or 12-year-old. Gut Teel, 14 Ariz.App 371 (1971). In the present case, the Court cited a standard legal text of the time for the statement that “testamentary capacity is not the same as capacity to conduct ordinary business”. This principle still applies today. The courts have held that the ability to have a trust depends on the aspect of the trust that is being examined. For example, when it comes to whether the person was able to give their property to certain beneficiaries after their death, the court will make the decision based on the person`s ability to sign a will.

On the other hand, if the issue is whether the person had the capacity to appoint someone as trustee of his or her trust during his or her lifetime, the court will likely use the contractual standard to determine whether the person had legal capacity. In general, capacity is usually analyzed based on the situation. That is, the answer to the question is different depending on the type of document and the circumstances of the signature. The general rule: The signatory must have sufficient understanding to know what the document is and what the implications of its signature are. The standard of testamentary capacity is therefore quite low. Even people who suffer from delusions or hallucinations have testamentary capacity. In a previous case before the Arizona Supreme Court, the signatory of a will had deteriorated significantly towards the end of her life (and before her will was signed): when did the girl`s behavior cross the line? The legal system is actually not very useful, because the answer is defined in a circular way. Their influence was “inappropriate” when it led to their desires being replaced by his own. It wasn`t necessarily reprehensible (at least not legally) when she told him what she wanted him to do what his mother had wanted or what was right.

But at some point, it may have turned ordinary family influence into “inappropriate” influence. What types of documents could they be? There are a variety of contexts in which ability can be difficult to assess, including (but not limited to): What is the best way for a person without family or close friends to work for a medical surrogate mother (health power of attorney) and an FI. Once it is assumed that a person has no jurisdiction or that his or her jurisdiction appears to be significantly compromised, the next course of action is to go to court and have his or her jurisdiction determined. If they prove incompetent, the interested parties (usually the family) will try to be appointed guardians or guardians, or both.