Richmond, VA asked in Elder Law and Estate Planning for Virginia

Q: Is a change in power of attorney valid if it was done within 90 days of being diagnosed in dementia?

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1 Lawyer Answer
Maria T Patente
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  • Estate Planning Lawyer
  • Manassas, VA
  • Licensed in Virginia

A: A diagnosis alone does is not complete proof that a person lacked capacity to execute a valid Power of Attorney. In addition, "dementia" is a general term and can include varying degrees of inability to process information accurately. However, for a Power of Attorney to be valid, the Principal--the person signing the instrument--must have the capacity to understand the instrument, its contents, and its significance. An estate planning attorney will not draft a Power of Attorney for a person who lacks capacity. Sometimes, if the attorney has unresolved doubts, the attorney may send the Principal to a specialist to evaluate capacity to understand the document. This is different from a general diagnosis of dementia.

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