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Preparing for Alzheimer’s and Diminished Mental Capacity

The early stages of Alzheimer’s can be difficult to negotiate for family members. What happens when a parent with a diagnosis of Alzheimer’s decides she wants to sell the family home, without having any discussion with other family members or without a plan for what comes next?

The legal issues facing a family in this type of situation are not straightforward. Even with a diagnosis of Alzheimer’s, a person can still make certain decisions and transactions, including selling the family home. If a parent gets angry at a child’s questioning a decision, they can go forward without them. How can you prepare for this?

The (Bryan TX) Eagle reports in the recent article “MENTAL CLARITY: Shining a light on the capacity to sign Texas documents” that the concept of “mental capacity” is complicated. There is considerable confusion about incapacity. The article explains that different legal documents have a different degree of required capacity. The bar for signing a Power of Attorney, a Warranty Deed, a Contract, a Divorce Decree, or a Settlement Agreement is a little lower than for signing a Will. The individual signing legal documents must be capable of understanding and appreciating what he or she is signing, as well as the effect of the document.

As long as she understands that she’s selling her house, and that, once the document is signed, the house will belong to someone else, a parent can sell her house. A terminal diagnosis or a neurodegenerative disease doesn’t automatically mean that an individual can’t sign legal documents. A case-by-case assessment is required, to see if the document will be valid.

The fact that a person is unable to write his or her name, doesn’t mean they lack capacity. If a senior can’t sign her name (possibly due to tremors or neurodegeneration), she can sign with an “X”. She could place her hand on top of someone else’s and allow the other person to sign her name. If this is completed before witnesses and the notary, that would be legal.

A hard part of Alzheimer’s is that a person’s mental clarity can come and go. Capacity can be fluid in the progress of a neurodegenerative or other terminal disease. Because of this, the best time to sign critical documents is sooner rather than later. No one can say the “window of capacity” will remain open for a certain amount of time.

Some signs should prompt you to move more quickly. These include things like the following:

  • Short-term memory loss;
  • Personality changes (e.g., unusual anger);
  • Confusing up or forgetting common-usage words and names; and
  • Disorientation and changes in depth perception.

The best route is for family members to talk with their parent’s physician and meet with an estate planning attorney to discuss the legal options. As the Alzheimer’s disease or other form of dementia progresses, the parent’s capacity will diminish. Documents need to be drafted in a timely manner, and a family plan needs to be put into place for the parent’s wellbeing and care.

Reference: The (Bryan TX) Eagle (February 7, 2019) “MENTAL CLARITY: Shining a light on the capacity to sign Texas documents”

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