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Can a person with dementia draft a will?

My mother was taken from in 2014 and later the County filed a conservatorship over the person and estate. She has been diagnosed with dementia. The county is fiing a petition to prepare a "substituted judgment" trust and rollover will. Can she participate in drafting this due to her mental incapacity?
Status: Open    Jan 05, 2016 - 07:28 AM

Dementia, Elder Law

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Jan 05, 2016 - 12:54 PM

The standard for capacity to make a will varies some from state to state. If she has been ruled incompetent by a court it would be difficult for her to be found competent to make a will but not impossible in some cases. The standard can generally be stated in simplest terms as: "Does she know what she has and whom she wants to have it when she is gone." If she has dementia and is being cared for she may not have much to leave when she is gone. Some states (Alabama) has a trust that can be used to pay for extra things not covered by Medicaid but still allow her to qualify for Medicaid. If this is used Mediciad gets reimbursed first when she is gone. Your best advice would come from an attorney in your area. Not all states allow a substituted judgment trust.
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