Santa Clara Estate Lawyer Answers, “What Do I Do If My Loved One Is Experiencing Dementia Without Having Written a Will?”

As people live longer, their susceptibility to cognitive decline increases. For many adult children with aging parents, this means they have to get involved in their parents’ financial and legal affairs. Estate planning, including the creation of a will, is ideally done well before any cognitive decline takes place. However, it’s never too late. Even if your aging parent already has dementia, you still have options for helping them create a will to ensure that their wishes and intentions are respected after their death.

What Are the Requirements for Creating a Will?

To create a valid will, a person (the testator) must have the mental capacity to do so. Mental capacity requirements for creating a will are defined by state laws and generally require that the testator understand the following:

1. The purpose of a will and the effect of creating and signing one.
2. The nature and approximate value of their property and assets.
3. Their relationship with their family, including spouse, children, and other relatives.

A Santa Clara estate lawyer who is creating a will for a person with dementia may only do so once they have established that the testator has the mental capacity to understand what they’re doing. Assessing mental capacity in a person with dementia can be tricky since the effects of the disease on a person’s cognitive function can fluctuate from day to day. Assessment, therefore, may require consultation with the testator’s doctor.

A will is considered to be a relatively simple legal document and the mental capacity requirements for creating one are not complex. Many people with dementia, especially those in the early stages, are deemed capable of creating a will.

What Happens If Someone Does Not Meet Requirements for Creating a Will?

If your loved one is deemed incapable of creating a will, your next step is to decide whether or not you need to take any action. When a person dies without a will, their property is passed on to their heirs in accordance with state intestacy laws. A Santa Clara estate planning attorney can help you understand exactly what that would mean for your loved one’s estate.

If your loved one does not have any heirs or relatives, or if state intestacy laws do not reflect your loved one’s best interests, there may be the option of requesting a court-created will. The application process will differ depending on the person’s circumstances, but typically involves providing details of assets and evidence that the testator is not mentally capable of creating a will. If approved, the court-created will then has the same effect as a will properly created by the incapacitated person. 

Contact a Santa Clara Estate Planning Lawyer

Whether your loved one still has the capacity to create a will or you need to apply for and create a will on their behalf, you need an experienced Santa Clara estate planning lawyer. We are here to guide you through this complicated legal process so that you can ensure that your loved one’s wishes and intentions are protected. Time is of the essence when it comes to creating a will for a person with dementia, so don’t delay. Contact our office at 408-889-1290 to schedule a consultation.