Avoid the Crisis

Early Planning is Key When Faced with Declining Mental Capacity

Attorney Jason Oei Sept. 7, 2021

One issue that is fundamental to estate planning is the capacity of the prospective client.  Because we are an Elder Law firm, this issue comes up much more frequently.  Many of the initial inquiries from the spouse or adult children of prospective clients discuss that their loved one has either declining capacity or an actual diagnosis of dementia or Alzheimer's.  The fact that they are seeking advice now is great because there is a window of opportunity to properly establish an estate plan.  

However, many other people do not seek help soon enough and at that point the only option available may be to do a conservatorship so that someone has decision making authority during the lifetime of the capacity impaired individual.  Naturally, if there are not already beneficiary designations on accounts or if any real property is not already owned in joint tenancy, the estate of the capacity impaired individual could be subject to a probate.

In speaking with these clients, I have found that one reason that they waited until it was too late to establish an estate plan was because they thought that the fact that there was a diagnosis of dementia or Alzheimer's or any other condition that could result in diminished capacity automatically would result in being unable to establish an estate plan.  This is not true.  

In California, there is a presumption that all persons "have the capacity to make decisions and be responsible for their actions." (California Probate Code section 810(a).)  The same code section goes on to say that a "person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions." (California Probate Code section 810(b).)  Thus, even though an individual may have a diagnosis of dementia or Alzheimer's, it is not necessarily too late to consult an attorney to discuss an estate plan.