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Assessing testamentary capacity after a dementia diagnosis

After a family member receives a diagnosis of dementia, a person in Massachusetts may wonder if it is too late to discuss end-of-life and estate planning issues. Unfortunately, the answer is not always straightforward.

According to Health Care News, testamentary capacity, the legal and mental capacity to create or change a will or other estate planning document, is dependent on the testator's understanding. The state's supreme court has developed a definition that can be applied. To be considered "of sound mind," people must be able to know the following: 

  • Who they may be expected to remember, such as children, spouses and other family members, and what relationship they share with those people
  • The personal property or assets that they own
  • That they are making or changing their will

A testator must not be so affected by the mental condition that it would influence how he or she would transfer property at the moment the transaction is done. The document may still be valid if the testator is confused or forgetful at an earlier or later point in time, though.

The Alzheimer's Association points out that a professional medical opinion may be helpful in deciding whether a family member who has been diagnosed is capable of understanding. Even if a doctor agrees that the person may have the mental capacity, it is important to explain the situation carefully to assess whether he or she really does grasp the situation before proceeding. Whenever it is evident that a person is able to participate in the process, he or she should do so.

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