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Dementia And Legal Capacity

By Kim Boyer

Dementia is often a key factor in determining the capacity of an individual. Doctors and elder law attorneys view dementia from different perspectives. Doctors are concerned with diagnosis and treatment. Elder law attorneys are concerned with whether there is capacity to execute estate planning documents, and the client’s susceptibility to being unduly influenced or exploited due to the diminished capacity.

The United States population is getting older and the prevalence of dementia is increasing. Dementia is not one illness, but a condition with different causes, presentations, and prognoses. The four most common causes of dementia are: Alzheimer’s Disease, Vascular Dementia, Dementia with Lewy Bodies, and Frontotemporal Dementia.

Some conditions are often misdiagnosed as dementia, or may worsen the severity of a person’s dementia. When treated for the underlying condition, the person may be found not to have dementia, to be incapacitated in specific areas of function only, or to have total capacity. Even where the person has dementia, he or she may retain capacity in specific areas or to execute certain documents, depending on the progression of the illness.

An understanding of the level of capacity required in a transaction is important. Ideally, the physician rendering a professional opinion will be familiar with the legal test for the level of capacity needed.

Contractual Capacity. To have contractual capacity, a person must understand the terms of a contract he/she may enter into with another party, and must understand the consequences of entering into such a transaction. The person must also be free of any undue influence.

Testamentary Capacity. Testamentary capacity is the level of capacity a person must have to execute a will. It is a lower level of capacity than contractual capacity. To have testamentary capacity, a person must (a) know the natural heirs of his/her estate; (b) have an understanding of the extent and value of his/her property; and (c) have an understanding of the extent of his/her wealth.

Capacity for Obtaining a Guardianship. The Court will appoint a guardian if a person meets the statutory definition and requirements in the state where guardianship or conservatorship is sought. In Nevada, the proposed ward must be either “incompetent” or of “limited capacity” as defined by the Nevada Revised Statutes.

“Incompetent” means “an adult person who, by reason of mental illness, mental deficiency, disease, weakness of mind or any other cause, is unable without assistance, properly to manage and take care of himself or his property, or both. The term includes a person who is mentally incapacitated.” NRS 159.019.

A person is of “limited capacity” if “the person is able to make independently some but not all of the decisions necessary for the person’s own care and the management of the person’s property.” NRS 159.022.

This information is for general informational purposes only and does not constitute legal advice. For specific questions, you should consult a qualified attorney.

Book cover: Alzheimer's and Dementia: A Practical & Legal Guide for Nevada Caregivers by Kim Boyer and Mary Shapiro
Book cover: The Essential Eldercare Handbook for Nevada by Kim Boyer and Mary Shapiro
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