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My Mom Has Dementia And Has Not Created An Estate Plan. What Can I Do?

This is a difficult issue for the family.  While you hope your mother has her affairs in order, sadly this is not always the case.  Dealing with a parent who has dementia can be challenging.  Creating an estate plan can be impossible if your parent since dementia can mean your mother lacks the mental capacity to create a will or trust.  Dementia is tricky because it depends upon how much their cognitive ability has deteriorated.  Just because someone has a diagnosis of dementia does not mean they cannot do a will or trust.  

The requisite mental capacity required to execute a will is found in Probate Code 6100.5.   To prepare and execute a will provided that person is over 18 years old and understands the nature of his or her property, his or her relationship with his family and has an understanding of his or her assets.   This is the lowest capacity requirement under the law.  It is possible for someone to have dementia and still have the capacity to direct the terms of the will and execute a will.

On the other hand, the requisite capacity to create and execute a trust is much higher.  The requisite capacity to execute a valid trust are found in Probate Code Section 812.   To execute a trust, the person must understand and appreciate the rights, duties and responsibilities created by the trust, the probable consequences, the persons affected by the trust and the significant risks, benefits and alternatives to creating the trust.  

A doctor can evaluate whether your mother has the capacity to participate in the creation of a trust or will.  Many doctors will even provide a written evaluation.  There are also geriatricians who specialize in dementia and can offer an opinion about whether your mother has the requisite capacity to execute a trust, will or both.  In the Silicon Bay Area there are several good doctors who can diagnose and offer an opinion.  One such geriatric doctor who specializes in dementia and who has also been an expert witness in court is Dr. Elizabeth Landsverk.  She will evaluate her patient and provides a comprehensive written report about whether the patient has the capacity to execute a will or trust.  

If your mother does not have the capacity to prepare and execute a will or trust, her conservator can petition the Court to create a  trust and will through a Substituted Judgment.  This, of course, means a conservatorship must be placed over your mother.   Any person is able to petition the court to instruct the conservator to perform certain actions such as creation of a trust.

The best course of action is to have your mother evaluated by a qualified doctor who can determine whether she has the requisite capacity to execute a will or trust.  If your mother has capacity, the trust or will should be prepared by an attorney.  In the event the trust or will is later contested, both the physician and the attorney will be witnesses.  If she lacks the capacity and requires a conservatorship, an estate plan can still be done through a Substituted Judgment.

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