Determining will-writing competency

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New Jersey Business News

by Karin Price Mueller
Friday August 14, 2009, 8:00 AM
Q: You answered a question last month about the transfer of a home from an elderly mother who has dementia to her caregiver child.

If the mother has dementia, how could she have the mental capacity to make such a gift?

When my mother wanted to change her will, the lawyer said no because he had concerns about her mental capacity and her doctor wouldn't say she was of sound mind.

My mother did write out the will in her own hand. How valid would such a will be if challenged by other family members?

-- Anonymous


A: That's a great question, and determining competency can be a confusing topic.

An elderly person could have dementia, but depending on the extent of the dementia, she might still have the competency to consummate a gift transfer, said Martin Shenkman, Paramus-based attorney and author of "Estate Planning for People with Chronic Illness or Disability."

''Someone can have dementia and suffer a stroke and still be competent to sign a will,'' Shenkman said. ''There are a number of different types of dementia and a stroke can have a wide possible range of impact.''

If someone is deemed incompetent, it's possible that she previously signed a durable power of attorney, which appoints an agent to make financial decisions, possibly including gifts, or a living trust with gift provisions, Shenkman said.

''If so, then the agent or trustee might have made the gift for her,'' he said. Your mom's handwritten will could be problematic.

''I am not sure what the lawyer intends to do with the read all of.......Determining will-writing competency