Dementia Doesn't Automatically Mean Someone Lacks Capacity - September 2026 Webinar Recap

Can this client still sign documents? 

It's a question elder law attorneys face every day, and the answer can be murky, especially when dementia enters the conversation. 

Elder law attorneys start by reviewing any existing estate planning documents. Even if a client already has financial and healthcare powers of attorney in place, those documents are often outdated or missing provisions needed for modern banking and government benefit planning.

When a client has a dementia diagnosis, it often pushes everyone toward the same conclusion: they can’t sign new documents.  

During AshBer's September webinar, elder law attorney Todd Whatley, CELA, discussed the ABA's revised Model Rule 1.14, which starts with a presumption that the client does have capacity and challenges many of the assumptions that often accompany a dementia diagnosis.

Todd began by acknowledging that attorneys may not all agree on how the revised rule should be interpreted. His view is that attorneys should take a practical approach when working with clients experiencing cognitive decline while doing everything possible to preserve the client's autonomy.

The revised rule no longer refers to clients with "diminished capacity" and instead addresses clients with "decision-making limitations." Capacity varies from person to person and often fluctuates throughout the day. Todd shared examples from his practice of clients who could clearly explain their wishes during one meeting but struggle during the next. Anyone who regularly works with dementia has seen similar situations. 

Rather than steering attorneys immediately toward guardianship, the revised rule focuses on maintaining the attorney-client relationship whenever possible and helping clients participate in decisions with the appropriate support. Guardianship can certainly be necessary, but it can also be expensive, public, and difficult to undo. Most importantly, it removes decision-making authority from the individual. Todd returned repeatedly to the idea that guardianship should be viewed as the last resort, not the starting point.

Todd also spent time discussing the role medical diagnoses play in capacity determinations. Many attorneys have been taught to look for a physician's letter before making decisions about capacity. The revised rule specifically cautions against relying exclusively on a medical diagnosis. A doctor diagnoses a medical condition, while an attorney applies a legal standard. A diagnosis may be relevant evidence, but it is not the entire analysis. A client who cannot remember what they had for breakfast may still know exactly who they trust to handle their finances.

Practical ways to assist clients might involve having meetings at different times of the day, simplifying explanations, or even trying a different location. In some situations, involving trusted family members can help, provided attorneys remain alert to the possibility of undue influence.

Todd argued that attorneys should focus on helping clients participate in decisions whenever possible rather than looking for reasons to exclude them from the process.

The webinar also addressed the level of risk involved in this type of approach. A client who wants to appoint their daughter who has handled finances for years as financial power of attorney presents a very different situation than a client who wants to appoint a caregiver they have known for two weeks. He recommended asking more questions in that situation: 

Can the client explain why they trust that person?

Does the explanation make sense based on their history and relationships?

Is the decision consistent with values they have held for years?

Capacity is not a light switch that is either on or off. A person's ability to make decisions can vary based on the decision itself, the circumstances surrounding it, and whether reasonable supports are in place.

Much of what Todd discussed is not necessarily new to experienced elder law attorneys. The rule provides stronger support for an approach many practitioners have followed for years. A dementia diagnosis should not automatically end the conversation about a person's ability to make legal decisions.