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Important Legal Documents to Have Before Dementia Sets In

Law Offices of David W. Wilcox June 21, 2023

According to Florida law, only a person with a sound mind is eligible to create a valid will, living trust, or other estate planning documents. This means that the person must understand the nature of the assets they’re dispersing, as well as their relationship with the potential beneficiaries. However, a person who has cognitive impairment or dementia may face various difficulties when creating their will. For the will or estate plan to be valid, the person must be mentally competent. For this reason, it is important that people create necessary legal documents as soon as possible. 

Since 1979, Attorney Wilcox has been offering comprehensive guidance and advocacy to clients in estate-planning-related matters. As a knowledgeable Florida estate planning attorney, David can assess your loved one's personal situation and determine the crucial legal documents to have in place at the beginning stages of dementia. The firm proudly serves clients across Bradenton, Sarasota County, and Manatee County, Florida. 

Cognitive Impairment and Legal Capacity 

As previously mentioned, only a testator with "testamentary capacity" may be able to execute a valid will, living trust, or estate plan in the state of Florida. Under Florida law, testamentary capacity can be described as the ability of a person to mentally understand three things: 

  1. The nature and extent of the property to be disposed of. 

  1. The relationship of the testator to beneficiaries or heirs in the will. 

  1. The practical effect of the will being executed. 

Generally, a person may still be of sound mind at the initial stage of dementia or Alzheimer's disease. However, testamentary capacity usually decreases with cognitive impairment. As time goes by, the patient may gradually experience memory loss and reduced thinking ability. 

Therefore, time is of the essence. Once someone close to you has been diagnosed with dementia or is exhibiting early signs of cognitive impairment, you should find a way to discuss the topic of estate planning with them. An experienced lawyer can help facilitate the discussion and enlighten you about some vital estate planning documents to create. 

Important Documents to Have in Place 

Here are some crucial estate planning documents to create once you notice early signs of dementia cognitive or impairment: 


A will is a legal document that can be used to leave certain instructions regarding how a person's property, assets, and money should be managed, disposed of, or distributed to heirs and beneficiaries when they're gone. 

Living Trust 

A living trust is a fiduciary arrangement that allows a person (the grantor) to give legal authority to someone else (a trustee or successor trustee) to hold the trust property on behalf of the beneficiaries until a future date. Upon the grantor's sudden incapacitation or death, the trustee will administer the trust in accordance with the provisions of the trust documents. 

Durable Power of Attorney 

A durable power of attorney document allows a person (the principal) to authorize another person (the agent or attorney-in-fact) to act on their behalf in certain financial, legal, tax, property, and health-related matters should the principal become unavailable or unable to act. 

Advance Healthcare Directive 

An advance healthcare directive allows a person (the principal) to indicate their favored medical procedures and treatments in advance should they become critically ill, incapacitated, or disabled and unable to make such medical decisions on their own. 

Do Not Resuscitate Order 

A do not resuscitate order is a written document that allows a person to leave instructions for doctors and healthcare providers not to resuscitate them or perform CPR if they stop breathing or their heart stops beating. 

Disposition of Remains 

The disposition of remains document allows a person to leave specific instructions about their preferred final arrangements – funeral and burial arrangements – and how their remains should be handled or disposed of when they die. 

Get Experienced Legal Support 

At the initial stages of cognitive impairment or dementia, the patient is still considered to be of sound mind and can draft a valid estate plan. Therefore, it is important that you act quickly and help them put their affairs in order. Attorney Wilcox has the diligence and expertise to educate and guide clients who have loved ones with dementia through the complexities of estate planning. 

As your legal counsel, David can educate your loved one about their estate planning options and work with an experienced physician to ensure that they have the testamentary capacity to create their will. Above all, Attorney Wilcox will craft a solid plan to protect your loved one's accumulated assets and wealth and help draft a valid estate plan. 

Contact the Law Offices of David W. Wilcox today to schedule a simple consultation with a practiced estate planning lawyer. Attorney Wilcox can offer you the dedicated advocacy and legal guidance needed by your loved one to create their will and estate planning documents. With an office in Bradenton, Florida, the firm proudly serves clients across Manatee County, Sarasota County, and the surrounding areas.