When completing any estate planning, including a trust, will, power of attorney, or health care directive, the person signing the documents must have what is called “capacity” in order to sign the documents. There are two kinds of capacity in estate planning: testamentary capacity and contractual capacity. Testamentary capacity is a lower form of capacity and is required by a person to make a valid will. Testamentary capacity means the testator (the person making the will) understands they are creating a will, understands what property they own, and understands how they are related to those people affected by their will. Contractual capacity is the capacity required in order to create a valid trust or a durable power of attorney for financial and legal decisions. Contractual capacity is a higher standard of capacity and requires the person understand the risks, benefits, and possible consequences of their decisions.
Estate planning attorneys, and attorneys in general, assess their clients or potential clients for their capacity. It is not something that is typically determined by a doctor prior to creating an estate plan. Although certainly a doctor would most likely be the one signing a declaration that you are incapacitated so that your next-in-line trustee or power of attorney could then take over.
Surprisingly, just because someone may lack capacity, it doesn’t mean that they are forever incapacitated. There are several medical conditions that can present symptoms that mimic dementia and signs of incapacity. If a loved one is suddenly acting differently, it may not mean that they have Alzheimer’s and it’s going to get worse. It may just mean that they have an underlying condition and once that condition is treated, their behavior will revert back to normal. Some of the most common conditions that mimic dementia are:
- Thyroid disease: thyroid disease comes on slowly, which can make it look like normal aging, but the symptoms can cause dementia-like symptoms. There is a simple blood test to check thyroid levels that an endocrinologist or even a primary care physician can order.
- Diabetes: if your blood sugar runs too low or too high, or if someone has undiagnosed diabetes, the symptoms are often confusion, irritability, or memory problems. Your primary care physician can easily check for this diagnosis.
- Vision or Hearing loss: sensory reduction can cause dementia-like symptoms, and it’s important to get this checked regularly. It is known that undiagnosed and untreated hearing loss will eventually result in cognitive impairment.
- Infections: any infection can cause symptoms similar to dementia, but the most prevalent one by far in the senior community is the urinary tract infection (UTI). For seniors, UTIs do not necessarily present with any pain or symptoms that younger people may have, and confusion may be the only symptom.
It is very important that even if you think a loved one may be moving down the dementia path, they continue to be seen for routine lab work by their physician to rule out any other underlying causes. It’s possible that they don’t have dementia and can regain their capacity.