Estate Planning with a Dementia Diagnosis

Q: My dad has dementia and he never completed estate planning documents. What should I do?

A: The question is whether your father still has legal capacity to complete his estate planning documents. Legal capacity can be tricky to define with precision, and the particular legal standard can vary depending on the document. In general, an individual has legal capacity if they are able to comprehend the nature and consequences of the document they are signing. For example, New York’s General Obligations Law governs the requirements to execute a valid Power of Attorney. In this context, capacity refers to the person's “ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney” and who can act as an agent under it.

If your father has dementia, it doesn't automatically mean he can't execute estate planning documents. If his dementia is not severe and he understands what the documents are for and who he's giving authority to, he can still create needed documents. The key documents he should consider are a Power of Attorney (for financial matters), Health Care Proxy (for medical decisions), Living Will (end-of-life medical preferences), and a Will or Trust (for distributing his assets after he passes away).

If your father doesn't have the legal capacity, the only option left is to start a guardianship process in New York Supreme Court. Once a guardian is appointed, they'll have the legal power to perform the tasks that would normally be done by an agent under a Power of Attorney or Health Care Proxy. This allows you or the appointed guardian to help your father with his personal matters, even if he hasn't completed his estate plan.

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It is more necessary than ever to find your father an experienced attorney to ensure the right steps are taken to protect his well-being and assets. An elder law attorney will be instrumental in the first step of assessing your father’s capacity to sign legal documents. If he lacks capacity, an elder law attorney can provide guidance on whether a guardianship proceeding is necessary. It is never too late to seek the advice of an experienced elder law attorney.

Nancy Burner, Esq. and Britt Burner, Esq. are partners at Burner Prudenti Law, P.C. focusing their practice areas on Estate Planning, Elder Law and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.