When to consult with an attorney regarding a loved one’s ability to make legal decisions and sign documents.
Q: My brothers and I are worried about our 85-year-old mother’s health and the undue influence that our youngest sister has over her. We believe that our mother has dementia and shouldn’t be making decisions for herself or signing documents. Our sister lives with our mother and has persuaded her to sign estate documents transferring control of our mother’s assets and health care to our sister. At what stage of dementia is it deemed undue influence over a person who lacks adequate ability to make decisions and sign documents?
A: Capacity is the freedom to make self-determining decisions. Everyone, to some degree, experiences memory loss as they age. It could be forgetting a specific word, pausing to remember directions to their favorite restaurant, losing interest in certain social activities and appearing to behave inappropriately around others. While these symptoms may represent early signs of dementia, it doesn’t mean a person has become incompetent and unable to make decisions.
There are many types of dementia with varying symptoms that may indicate inability to make decisions. Early stages of dementia may result from poor blood flow known as vascular dementia. Parkinson’s disease is thought to only involve movement, but for many people, it may cause slowness in thinking, loss of memory, decreased attention span and difficulty finding words. Alzheimer’s disease causes a progressive mental deterioration in middle or old age. One in nine adults in America experiences some level of this disease, which is the dementia most commonly associated with senility and degeneration of the brain. Just because someone may be experiencing symptoms of dementia doesn’t mean they are incapable of making decisions or signing documents.
Dementia has stages. For example, Alzheimer’s disease is considered to have seven stages, but the afflicted person may never reach stage six or seven before death. At these stages, a physician may detect clear cognitive problems during a patient visit and recommend another person should make decisions for the patient. Until a doctor determines otherwise, the patient is considered competent, capable of making his or her own decisions and able to sign documents such as trusts, wills, durable powers, health care proxies or other life documents.
If your loved one is exhibiting early signs of dementia, don’t be in a hurry to assume he or she is incompetent. The process of having someone declared incompetent by doctors and courts can become combative, expensive and emotionally impacting upon families. Remember, you too will be a senior citizen one day.
If a child perceives his or her parent is favoring other children, especially when inheritances are involved, it’s common for sibling rivalry to ignite jealousy, hatred and greed. Not receiving what you deem to be your fair share of the family fortune, without independent proof of incapacity, is not sufficient justification for presuming your parent is incompetent.
Families are encouraged to meet with a neutral person, such as an elder law attorney, to discuss safe decisions about aging parents and to avoid family warfare.
About the Author
Kristen M. Jackson is the founding partner of Jackson Law PA (407-363-9020). She is experienced in estate planning, real estate law, business and contract law. Her firm has earned an AV rating by Martindale-Hubbell signifying the highest level of personal excellence as obtained through opinions from members of the bar and judiciary.