Pearls

Can patients with dementia prepare a valid will?

Author and Disclosure Information

 

References

A patient with early-stage dementia may wish to write a will before diminishing memory and cognition void future legal transactions.1You can help patients protect their heirs from posthumous legal struggles by:

  • advising them to consult an attorney about drafting a will
  • and explaining the basics of testamentary capacity.

Testamentary capacity is a person’s ability to understand his property ownership, rights to claiming that property, and the practical effects of executing his will. Determining whether a person has testamentary capacity rests with a judge or jury, but courts often ask psychiatrists—especially those who diagnose dementia—to help describe the deceased’s state of mind when he or she wrote a contested will.

When a will is in probate, a usual heir or some other person may challenge its validity. Lawsuits questioning whether an elderly person had the mental capacity to authorize a legal transaction often hinge on two possible claims:

  • undue influence (the will writer was not capable of resisting pressure or manipulation by a person who wanted to influence property distribution)2
  • insane delusion (the will writer had mistaken beliefs that were not based in reason and could only be explained by mental illness).

The mere presence of mental illnesses, even severe schizophrenia or dementia, does not automatically render a person incapable of creating a valid will.2 In fact, the court requires a higher level of decision-making capacity for other legal transactions such as contracts. Will writing is an individual matter, whereas a valid contract involves an agreement between two or more persons and necessitates a higher level of functioning to understand.1

When counselling patients and their families, explain the basics of testamentary capacity so they can get help navigating end-of-life legal decisions. Legal transactions are more likely to be upheld in court if they are made in the early stages of a dementing disorder, rather than after it progresses.

Recommended Reading

Choose Nonstimulants With Care in ADHD
MDedge Psychiatry
Anxiety Disorders Place Huge Burden on Child's Entire Family
MDedge Psychiatry
ADHD Stimulants: No Link to Propensity for Later Drug Abuse
MDedge Psychiatry
Clinical Capsules
MDedge Psychiatry
Zolmitriptan Spray Effective as Migraine Tx
MDedge Psychiatry
Comorbid Conduct Disorder Secondary to Depression
MDedge Psychiatry
Imaging Breakthroughs Reveal Early AD Changes
MDedge Psychiatry
Gentle Exercises Can Lead to Improved Balance
MDedge Psychiatry
Late-Onset Bipolar Patients Not as Ill as Counterparts
MDedge Psychiatry
Insomnia May Blunt Response to Antidepressants
MDedge Psychiatry