While Alzheimer’s disease is progressive and irreversible, mental capacity often fluctuates during the early stages. Many families are familiar with the idea of “good days and bad days,” where a person may appear fully capable one day and struggle the next. This reality is especially significant in estate planning, because legal capacity is assessed at a specific point in time. As Alzheimer’s advances, the periods of clarity typically become less frequent, and the opportunity for effective planning narrows.
Loss of capacity is a common source of anxiety for families. In British Columbia, however, capacity is not an all-or-nothing concept. It is task-specific. A person may have the capacity to make a will, for example, but not to manage certain financial or personal matters, or vice versa. Importantly, a diagnosis of Alzheimer’s does not automatically mean that an individual lacks legal capacity.
Many people in the early stages of Alzheimer’s remain capable of making valid estate planning decisions. When preparing wills and related documents, estate lawyers in BC assess capacity at the time the document is made, typically through careful questioning, observation, and detailed contemporaneous notes. In some cases, additional assessments may be appropriate to ensure the client’s wishes are clearly understood and properly recorded.
Once capacity is lost, however, the window for estate planning closes. Creating or updating a will, an enduring power of attorney, or a representation agreement requires a sufficient level of capacity. While there may be periods where capacity appears borderline, once the legal threshold is crossed, options become extremely limited. Families may be forced to seek court involvement, which often results in delay, added expense, and significant stress. For individuals living with Alzheimer’s, timing is, therefore, more critical in estate planning than in almost any other context.
The importance of timing becomes even clearer when an estate plan is examined in hindsight. In British Columbia, estate litigation frequently involves challenges to a will-maker’s capacity. Where capacity may later be questioned, thorough records and a careful planning process can significantly reduce the risk of disputes. This underscores the value of working with an experienced estate lawyer who can ensure that the documents accurately reflect the will-maker’s intentions at a time when they had capacity, and that the overall planning process itself far less vulnerable to later scrutiny.
Wills and Estate Planning for People with Dementia
A diagnosis of Alzheimer’s does not always mean that new estate planning documents are required. Many people have not revisited their estate plan in years, and for individuals living with dementia, reviewing existing documents can be just as important as creating new ones. In some cases, an existing will and related documents may already accomplish the individual’s goals. Without a timely review, however, uncertainty can arise, leading to distress for the person diagnosed and additional stress for family members who are trying to support them.
When new documents are prepared, or when existing ones are updated, additional care is often required. Lawyers typically take detailed notes and may implement safeguards to confirm that the documents reflect the individual’s true intentions and are free from undue influence. These precautions can be critical in determining whether an estate plan withstands a legal challenge later on, particularly where family members or caregivers are closely involved in the individual’s daily life or financial affairs.
It is common, and entirely human, for individuals to want to provide for those who have cared for them, or who they expect will provide care as their condition progresses. However, gifts or benefits to caregivers can later attract scrutiny. Allegations of undue influence may arise where someone was in a position of power or trust during the individual’s illness. Careful planning and clear documentation can help mitigate these concerns and reduce the likelihood of future disputes.
Estate planning tools can also be tailored to address anticipated care needs. For example, trusts may be used if a healthy spouse predeceases a spouse living with Alzheimer’s, or documents may provide for flexible use of funds and oversight of care decisions. Thoughtful planning can often avoid the need for more intrusive and burdensome alternatives, such as court-ordered committeeship.
Incapacity and Committeeship in British Columbia
If a person loses legal capacity without having appropriate planning documents in place, families may need to apply to court for committeeship. In British Columbia, committeeship involves court supervision of financial and, in some cases, personal decision-making for an incapable adult. A committee is appointed to act on behalf of the individual who requires assistance.
Committeeship applications can be expensive, time-consuming, and emotionally difficult, particularly if there is disagreement over who should be appointed. Even in uncontested cases, the process often occurs at a time when families are already under considerable strain. While committeeship may be necessary in some situations, it is generally considered a last resort. With proper estate planning, including enduring powers of attorney and representation agreements, a committeeship application to the British Columbia Supreme Court can often be avoided.
Protecting Individuals with Alzheimer’s and Their Families
At every stage, protecting vulnerable individuals must remain the priority. A diagnosis of Alzheimer’s places a person in a position of increasing vulnerability, and that vulnerability may be apparent to those around them. Effective estate planning protects not only the individual, but also the family members who support them, from allegations of impropriety, poor judgment, or undue influence.
Well-drafted documents can include safeguards against financial abuse, provide clear guidance for decision-making, and reduce the likelihood of family conflict. Equally important, good planning strikes a balance between protection and autonomy. Many individuals wish to remain involved in decision-making for as long as possible, and BC’s legal framework allows for that flexibility. When autonomy is eventually compromised, clear instructions can ease the emotional burden on caregivers and reduce uncertainty when difficult decisions must be made.
For many families, thoughtful estate planning provides reassurance during a period of significant emotional stress.
When to Speak with an Estate Lawyer in British Columbia
Early legal advice can make a meaningful difference following an Alzheimer’s diagnosis. An estate lawyer can help assess capacity, review existing documents, and implement appropriate planning strategies while options remain available.
Estate planning in the context of Alzheimer’s disease can be emotionally challenging, but it is an essential part of preparedness. Planning does not mean giving up hope. Rather, it is an act of care both for the individual living with Alzheimer’s and for the family members who will support them in the years ahead.
