A diagnosis of dementia, Alzheimer’s disease or another condition affecting a person’s mental abilities does not necessarily mean that an Illinois resident can no longer make a will. What matters is whether the person still has the mental capacity required to understand what a will does, what property they own and who will receive that property after their death.
However, waiting too long can have serious consequences. If a person becomes incapacitated and a court appoints a plenary guardian for the person’s estate, Illinois law creates a rebuttable presumption that the person lacks the capacity to make or change a will. A guardian cannot simply step in and create a will on the incapacitated person’s behalf.
Guardians cannot make a will for an incapacitated person
A guardian may have broad authority to manage an incapacitated person’s property and financial affairs, but that authority does not include the ability to make a will for the person.
That distinction can become extremely important when someone develops dementia or another condition that progressively affects cognition. There may be a period during which the person has received a diagnosis but still understands their property, family relationships and the consequences of making a will. During that time, the person may still have testamentary capacity and may be able to put an estate plan in place.
Once the person no longer has the necessary capacity, however, the opportunity may be lost. Family members cannot create a will for them based on what they believe the person would have wanted, and a guardian cannot sign one on their behalf.
If the person dies without having made a valid will, their probate property generally passes according to Illinois intestacy laws. Those laws determine which relatives inherit and in what proportions, regardless of whether that distribution reflects what the person would have chosen.
This is one reason estate planning should be completed while a person can still make their own decisions. A will is not something that family members or a court-appointed guardian can simply put in place later if incapacity occurs. Legal guidance can help you and your loved ones prepare ahead or learn more.
