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Mental Capacity:

Prospective clients often ask me when the right time is to execute (sign) estate planning documents. The answer is yesterday (or today) because we do not know what tomorrow brings. The crucial question when an estate attorney meets with a prospective client is whether that client has ‘mental capacity’ – whether the client understands who he/she is (they are), what he/she is (they are) doing, who his/her (their) beneficiaries are, etc. Physical incapacity is generally not an issue and generally may be overcome. However, the law clearly states that a person who lacks mental capacity may not execute legal documents of all kinds (e.g. contracts, agreements, Will, etc.)

When a person is showing early signs of dementia or Alzheimer’s disease, the person and his/her/their family should not wait to execute documents. Unfortunately, the disease causes deterioration of one’s mental capabilities, so time is not on his/her/their side. Rather, the family needs to find a good day (usually morning) when the person is lucid and mentally capable to meet with an attorney and execute the documents. If the person is not lucid on the appointment date, reschedule the appointment to another date. No attorney wants to meet with a prospective client who is mentally impaired for any reason.

Again, time is not on that person’s side. In this situation, the appointment needs to be made sooner, rather than later. Even better, schedule the appointment when the prospective client is mentally well and not impaired in any way. If a person with early onset Alzheimer’s disease waits too long, he/she/they will no longer be able to execute any legal documents.

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