Making legal decisions becomes more complex when a loved one's mental capacity starts to decline. Determining whether an elderly parent or relative has the soundness of mind to sign important documents can be extremely challenging. You want to uphold their wishes, but you also need to protect their interests in case they can no longer fully comprehend the implications of their choices.

When a person's cognition is impaired by illness or old age, proper execution of wills, contracts, powers of attorney and other legal papers requires careful evaluation. The good news is that the bar is set fairly low for simpler documents like basic wills. In most states, your loved one needs to understand the nature of the document, the property they own, who stands to inherit it, and that they are signing a will. Higher capacity is required for complex transactions like contracts, which require not just grasping the immediate exchange, but also comprehending finer details, consequences, and the broader context.

So how do you make the difficult judgment call about your loved one's ability to sign something as momentous as a will? Here are some tips:

Look for Red Flags in Behavior

Be on the alert for any signs your loved one is highly confused, forgetful or detached from reality. While occasional memory lapses are normal with age, extreme episodes of disorientation or unstable mental state are reason for concern. Monitor their cognition and note any worrisome patterns.

Consult Medical Professionals

Consult your loved one's physician. Doctors can't make definitive declarations about legal capacity, but they can share important medical insights about your loved one's cognitive condition, mental status, and ability to understand information. Ask them specific questions about comprehension and judgment. Their input will help you make an informed decision.

Have Direct Conversations

Talk to your loved one. Have an open and honest conversation about the document and confirm they actually understand what it means on a deeper level. Ask thoughtful, open-ended questions that encourage them to explain it in their own words. Gauge their rationality.

Get an Independent Assessment

If you have doubts, it may be worth consulting an experienced elder law attorney or professional geriatric care manager to conduct a capacity assessment. They are trained to professionally evaluate cognitive function and ensure proper legal protocols are followed.

Plan Ahead Proactively

So when should you start planning? Don't wait until catastrophic decline sets in. If there's any question at all about diminishing capacity, act now to get affairs in order while your loved one can still meaningfully participate.

Here are some proactive steps:

• Schedule a legal checkup to identify any gaps in planning documents. An attorney can advise you if a capacity assessment is needed.

• Gently raise the topic and explain why planning is essential to protect their interests. Overwhelming them with complex details could undermine comprehension. 

• If capacity is borderline, have them execute a basic will and power of attorney immediately while they still can understand. Delay more complex estate planning.

• Consult your elder law attorney about setting up a revocable living trust, which can help avoid probate issues later on if capacity declines.

• Establish open and ongoing dialogue with your loved one's medical providers to stay on top of mental status changes. Adjust plans accordingly.

With some careful personal observation, input from professionals, and proactive planning, you can feel confident you are making the best decision about your loved one's capacity. Upholding their wishes provides peace of mind that they are still maintaining control over their life and legacy. When you're ready, contact us to schedule a consultation with one of our experienced Rochester Elder Law advisors so you can rest assured their interests are protected now and in the future.