A lot of families in North Georgia have either personally been affected by Alzheimer’s disease, or know a family who has. As all of us get older, it is inevitable that some of our friends and family members will be diagnosed with Alzheimer’s disease or dementia. Dementia refers to the general decline in mental ability severe enough to interfere with daily life. Alzheimer’s disease accounts for 60 to 80 percent of cases. Vascular dementia, which occurs after a stroke, is the second most common dementia type. But there are many other conditions that can cause symptoms of dementia, including some that are reversible, such as thyroid problems and vitamin deficiencies.
Because there is no treatment or cure for Alzheimer’s disease, knowing how the disease will affect a family member, their estate or their ability to create an estate plan, is essential. It is particularly important to understand how Alzheimer’s disease can lead to estate litigation, and how you can take steps to avoid such problems.
It can be useful to think of Alzheimer’s disease as not a single medical condition, but rather a continuum of conditions. As most of us age, we naturally lose some of our physical and intellectual abilities. We learn to cope with the new realities in our lives each step of the way. For some people, these new realities are little different than what they knew when they were younger, while for others there are significant changes which impact their ability to manage their day-to-day affairs.
Like aging itself, Alzheimer’s disease has stages. In the early stages of Alzheimer’s disease, most people are entirely capable of making their own decisions. That includes decisions related to health care, daily nourishment, and even executing new estate planning documents to protect themselves and their estates. If you know someone in this state, it is important that they promptly contact experienced estate planning attorney to confirm their estate plan is updated.
On the other hand, there are many people who have progressed towards the advanced stages of Alzheimer’s disease and they no longer have the ability to make decisions regarding important issues in their life or sometimes even their day-to-day care. People with advanced Alzheimer’s disease do not typically have the ability to make knowledgeable and rational decisions and therefore cannot execute estate planning documents such as a Last Will and Testament, Power of Attorney, or Advanced Health Care Directive. If someone suffers from the advanced stages of Alzheimer’s disease did attempt to execute a new estate planning document, it would likely lead to litigation involving the enforceability of the new document.
Everyone creating any kind of estate planning document must have the requisite mental capacity. In Georgia, a person executing a Last Will and Testament must:
- Understand the nature of the act (i.e. that the execution of the will is intended to dispose of their property at the time of death)
- Understand the general nature of their property interest subject to disposition;
- Understand who the persons in their family and who would benefit from the will;
- Be capable of conceiving and expressing an intelligible distribution scheme.
Should a family member execute an estate planning document while suffering from Alzheimer’s disease, you must be careful. Whoever tries to enforce the document must be able to show that at the time the signor executed the estate planning document that they were mentally capable.
Depending on the stage of the disease and their individual circumstances, it may be important to take additional steps to protect the enforceability of the estate planning document. For example, the family member might need to see a physician shortly before the execution of the estate planning documents. As long as the physician diagnoses the individual as being mentally capable, the family member will be able to execute the estate planning documents, but you should keep certified copies of those medical records. It may also be a good idea to consider doing a video-taped will execution. If appropriate safeguards are not followed regarding the execution of estate planning documents while a family member is suffering from Alzheimer’s disease, others might be able to challenge the enforceability of the documents.
If you or a loved one needs to discuss the possibility of executing new estate planning documents in anticipation of issues related to Alzheimer’s disease, the estate planning lawyers at Durden & Mills, PC can assist you. Call us at (706) 543-4708 for a free consultation.