When is a patient with dementia considered unfit to sign legal documents?

A fellow caregiver asked...

Our family member has dementia and has recently changed her power of attorney. Her short term memory is very bad. She does not remember that she created a will and POA two years ago. She is unable to retain information of things that have happened within the last week. Legally, how do you consider when someone is incompetent.

Expert Answer

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your question really raises two questions: One is when a person has the legal capacity to make a valid legal document. The other is when another named agent may take over for a person because of mental incompetence.

As for making a legal document: Generally, a person must be able to understand what the document is and does -- and must also be able to understand that he or she is making one. In the case of a will, the maker must be able to remember and understand who the beneficiaries are and what property they will get."¨"¨

The capacity requirement is measured at the time the document is made or changed -- and that can be a tad tricky. Some people with dementia or Alzheimer's, for example, intermittently have the mental capacity that is legally required.

"¨"¨If your mother was mentally lucid two years ago when she made her will, than it is likely valid now.

If you wish to contest the legality of a change in a legal document "“ the power of attorney that she recently changed -- then you must be able to show your mother actually lacked the required capacity when the document was changed, and that the document was written differently than it would have been if she had the required mental capacity. This usually requires hiring an attorney for help.

If the POA names an agent to take over when your mother is "mentally incompetent," or words to that effect, then it likely also spells out how and who should make that determination. A common requirement is that a doctor or two must certify the condition in writing.

If you believe it is time for the named agent in the POA to take over for your mother, seek the written evaluation of at least one doctor.