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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...

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My father has dementia. Can he execute a will?

Dementia is a progressive disease which affects mood, behavior and memory.  There are many stages of dementia.  Just because your father has a diagnosis of dementia does not mean he cannot execute a will.  However, it is best to document your father's capacity at the time the will is executed by having your father mental capacity evaluated by a medical professional such as a geriatrician who specializes in dementia.  

In order to execute a will in California, your father needs to have the requisite legal capacity.  If he does not have the legal capacity, the will can be invalidated.  A person has the mental capacity to execute a will if the person has the capacity to understand the nature of the will and its consequences, understand their extent of their property, understand and remember their family and how the will affects those individuals.  

While this sounds like a simple concept, it can be very complex when someone has...

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