The doctor says they have dementia and signed a paper stating that they don’t have capacity. What does that mean? It is only an opinion. It won’t provide you or your loved one any protection if they sign a legal document. The new will, trust, and powers of attorney will be presumed valid, as will the check or deed they gave to a scammer.
Probate Code Section 810 states: The Legislature finds and declares the following:
(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.
(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.
(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.
The legislature expressly states that a doctor’s letter is not sufficient to overcome the presumption of capacity. This is often used for evil, but I use it to help people. In my office, if there is sufficient information to ensure that the person with dementia will be protected by signing the legal documents, I use this presumption to keep families out of our corrupt and expensive conservatorship court.
