Changing or Revoking Legal Documents
Many people are surprised to learn that a person with Alzheimer’s or dementia may still be legally competent to sign, revoke, or change legal documents.
In the instance of a Will, under the laws of most states, your loved one is legally competent to sign, revoke or change a Will if at the time of signing the document your loved one meets the following four tests:
1. Does the person know the natural objects of his bounty (in English: does he know who his spouse and his children are?)
2. Does the person comprehend the kind and character of her property (in English: does she know roughly what her net worth is [more or less than a million dollars? More less than $500,000?], and what kind of assets she owns (real estate – where located? Retirement funds? Investments? How many vehicles? Antiques?).
3. Does the person understand the nature and effect of what it is he is signing? (In English: does he realize the document is indeed a Will, and nota contract to purchase a washer and dryer? And that this document will distribute his property upon his death … notwhile he is alive?)
4. Is she able to make a disposition of property according to a plan formed in her mind? (In English: if she dies, she wants everything to go to her spouse, if living; otherwise, everything goes to her children equally.)
If all 4 of those tests are met at the time of signing, then the person has the capacity to sign, revoke, or change a Will, even though the person may have been diagnosed with cancer, or dementia, or Alzheimer’s last year or last month. The question in court will be: did the person likely have a lucid moment and could the person have passed those 4 tests at the moment the person signed, revoked, or changed a Will?
A physician’s recommendation or an experienced lawyer should meet with your loved one to help determine whether those 4 tests are met.
With regard to signing, revoking, or changing a power of attorney, warranty deed, contract, divorce decree or a settlement agreement, the bar is a little higher than the signing of a Will. The person must have contractual capacity, instead of testamentary capacity.
The person signing must still be capable of understanding and appreciating (i) what he or she is signing and(ii) the effect of the document. But the effect of the document is more urgent or immediate in signing a deed, contract, or divorce decree, than with a Will.
So, it is possible to be incompetent to sign, revoke, or change a power of attorney, contract, or a warranty deed, or a divorce decree, or a settlement agreement, but becompetent to sign a Will. The so-called bar is lower for a Will, because the Will does not take effect until the person passes away and the person may change the Will many times before she dies. A contract, deed, or other legal instrument takes effect during the person’s life. So the law sets the bar higher for those documents.
Before changing or revoking any legal document, and before your loved one changes or revokes a legal document, please consult a local probate attorney in your area.