A common myth in Florida is that a person with dementia cannot sign estate planning documents. While dementia is a serious diagnosis, it does not automatically mean someone has lost the mental ability to make decisions. Florida law looks to mental capacity—the person’s ability to understand what they are doing—at the moment they sign, not simply their medical diagnosis.
Dementia vs. Mental Capacity in Florida
Dementia is a medical condition that can impair memory, reasoning, and judgment. But “capacity” in the estate planning context is a legal concept focused on whether a person can:
- Understand the nature of the document,
- Recognize the effect of signing it, and
- Appreciate how it impacts themselves and their property.
This distinction is critical. Someone may carry a diagnosis of dementia yet still have sufficient capacity to sign valid estate planning documents during periods of clarity, often referred to as lucid intervals.
Mental Capacity Requirements for Estate Planning Documents in Florida
The standard for mental capacity depends on the type of document being signed.
Wills
To sign a valid will, a person must have “testamentary capacity.” This means they must:
- Understand they are creating a will,
- Know the nature and extent of their assets,
- Recognize the natural objects of their bounty (typically close family members), and
- Understand how the will disposes of their property.
This is a relatively low threshold compared to other documents.
Trusts
Capacity to create or amend a trust is usually held to the same standard as making a contract. The person must be able to:
- Understand the nature and purpose of the trust,
- Comprehend the effect of transferring assets into it, and
- Make rational decisions regarding its terms and beneficiaries.
This is a higher standard than a will because trusts are often treated as contracts.
Powers of Attorney
For a power of attorney, the person must have the capacity to understand the authority they are granting. This requires:
- Awareness of the powers being delegated,
- Comprehension of the risks and benefits of giving those powers, and
- The ability to make a rational decision in appointing an agent.
Designations of Health Care Surrogate
The person must understand:
- That they are giving someone authority to make health care decisions on their behalf, and
- The nature and scope of those decisions.
This standard is closer to the power of attorney standard and ensures the signer appreciates the significance of entrusting another with health care decisions.
Living Wills
For a living will, the person must be able to:
- Understand the nature of the document,
- Comprehend the medical treatments they are authorizing or refusing, and
- Appreciate the consequences of those choices.
Fluctuating Capacity and Lucid Intervals
Dementia often involves ups and downs. A person may seem confused one day but fully clear-headed the next. Florida law allows documents signed during these lucid intervals to be valid, provided the person had the required level of mental capacity at the time of signing. Attorneys often document the circumstances carefully to reduce the risk of future challenges.
Why Capacity Matters
If someone signs without sufficient capacity, the document could later be contested and invalidated. For example:
- A will might be overturned in probate,
- A trust could be disregarded, or
- A power of attorney might be rejected by financial institutions.
This can lead to delays, family disputes, and court intervention.
Conclusion
A diagnosis of dementia does not automatically prevent someone from making estate planning decisions. Florida law requires that mental capacity be assessed at the time of signing, and many people with dementia retain that ability during lucid intervals. Families should not assume incapacity without proper evaluation. If you are concerned about a loved one’s ability to sign estate planning documents, consult with an attorney promptly to review the situation and take steps to ensure documents are valid.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Every situation is different, and you should consult with an attorney regarding your specific circumstances. https://scovills.com/?p=3290
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