Questions always arise about when it is time for a person with memory loss to sign a legal document such as a will, power of attorney or healthcare directive. The answer is that it just depends on the situation. The facts in the case at hand must be thoroughly reviewed. If you are dealing with a feuding or fractious family, it may be in everyone’s best interest to avoid implementing any documents. Otherwise you will be inviting a certain litigation situation. There is a concept known as lucid moments. Lucid moments mean that the individual signing the legal documents understands the essence thereof at the time of the signing. That person must know and understand the overall parameters of the will or power of attorney. There is normally a much higher standard applied to the lucid moments rule when a person is signing a will. One way to document the person’s mental capability and ability to understand such a document is to have them examined by physicians who have been treating the person and who have familiarity with their situation over protracted period.
This concept will be interpreted on a state by state basis. The rules will vary depending on both state laws and legal precedent cases decided by that state’s highest court. If a family is harmonious and gets along well, then the lucid moments rule may be interpreted in a less onerous way. One should look at prior document to determine who was selected by the family member’s suffering from memory loss to be their primary fiduciary. With regard to a will, it is wise to review the prior will and follow the terms of any prior disposition of family assets. Changes to the document may be made due to the disability or death of a family member or a named personal representative or trustee. Great care should be taken prior to implementing or changing documents when a family member suffers from memory. You should always consult with a knowledgeable elder care attorney prior to making a decision to use this strategy. Otherwise you may be creating a huge family problem that will ultimately result in family strife and litigation.