Senior women with dementia

Understanding Legal Capacity and Dementia

StachlerHarmon Attorneys at Law Dec. 20, 2023

Understanding estate law concepts can feel like trying to learn a new language, all while striving to make the best decisions for your loved ones' future. Let's shine a light on one crucial aspect of estate planning: testamentary capacity. This term might sound complicated, but it's essentially about a person’s ability to understand and execute their will. And yes, it's as important as it sounds. 

We at StachlerHarmon Attorneys at Law will break down what testamentary capacity means and guide you on what to do if dementia or other conditions have you worried about a loved one's capacity. So sit back, take a deep breath, and let's dive into this together. We're here to ensure that you're well-equipped with all the information you need. 

Understanding Testamentary Capacity 

In Ohio, understanding legal capacity primarily revolves around a person's ability to make informed decisions about their legal rights and responsibilities. When it comes to making a valid will, the law uses the test for testamentary capacity set forth in Niemes v. Niemes. According to this test, a person must: 

  • Understand the nature of the business they're engaged in. 

  • Have a general comprehension of the nature and extent of their estate. 

  • Be able to hold in their mind the names and identities of those who have natural claims on their bounty. 

  • Appreciate their relation to the members of their family. 

It's important to note that the mental condition of the person at the time of making the will is what matters most to testamentary capacity. Furthermore, evidence of the person's mental condition within a reasonable time before or after making the will can be admissible in court on the issue of mental condition at the time of making the will. 

However, Ohio law doesn't provide a clear test of capacity for other estate planning documents and certain transfers. This area of the law remains somewhat murky, and an unreported Ohio case suggested that the test for wills and trusts should be testamentary capacity, and the threshold for forming an LLC for estate planning purposes should be whether the creator had the capacity to make a contract. 

So, if you're concerned about the capacity of a loved one to execute an estate planning document due to dementia or any other reason, we strongly recommend scheduling the signing for a time when the individual is expected to be lucid. Also, steps should be taken to document that the individual was asked questions to confirm testamentary or contractual capacity, and that those questions were answered appropriately. At StachlerHarmon Attorneys at Law, we're here to navigate these complex matters with you. 

Estate Planning, Legal Capacity, and Dementia

Estate planning is a process where you make decisions about the distribution of your assets, appoint guardians, or conservators, and create advance directives. These decisions require a clear understanding of your property, relationships, and the consequences of your choices. 

People with dementia often experience fluctuations in cognitive abilities, from periods of clarity to times of confusion. This variability poses challenges when assessing their legal capacity. It's essential for those supporting individuals with dementia, including attorneys like us, to take measures to check for testamentary capacity and document it. Asking simple questions about personal information and the purpose of the visit can provide evidence of capacity. 

Legal Challenges and Precautions 

The potential for legal challenges to estate planning documents created by individuals with dementia is another crucial consideration.  

Interested parties may question the testator's legal capacity at the time of executing the documents. A recent unreported case suggested that testamentary capacity should also apply to trusts, and the threshold for forming an LLC for estate planning purposes should be contractual capacity. 

To minimize the risk of legal challenges, we advise scheduling the signing of estate planning documents when the individual with dementia is most lucid. Also, steps should be taken to document that the individual was asked questions to confirm their capacity and that their answers were appropriate. Exploring ante-mortem procedures, which allow wills and trusts to be declared valid before the maker's death, may also be in your best interest.  

We're Here for You

If you're worried about legal capacity and dementia, it's crucial to consult with a seasoned estate planning attorney. At StachlerHarmon Attorneys at Law, we can provide expert guidance and ensure that the estate planning process complies with the law, taking into account the unique circumstances of individuals with dementia.  

From our office in Dayton, Ohio, we help clients throughout Warren, Greene County, Clark County, Miamisburg, Butler County, and Preble County with a variety of estate planning matters. Let us know how we can help you secure your family's future. Set up an initial consultation today.