How To Cope With Dementia

• Published date: 02 January 2023
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: DR & AJU LLC
• Author: Ms Eun Kyung KIM

My grandfather passed away when I was 15 years old. For the last three years, he had suffered from dementia. He was once refined like an honorable seonbi, a traditional Korean scholar full of virtue, so it was heartbreaking to see him gradually losing himself to dementia. I remember him sitting in front of a piece of paper with his hands frozen in mid-air, devastated, unable to recall words he used to write effortlessly. Perhaps that was when he realized that he had fallen into an abyss that would steadily consume his memory. That he would encounter such situations more often.

Working as a lawyer, I have participated in several cases sparked by dementia. In many of those cases, adult children were already engaged in inheritance disputes. The most typical situation involved the adult children claiming an adjudication on the commencement of adult guardianship of their parent with dementia and pressuring the appointed adult guardian to claim for invalidity of gifts, or claiming for invalidity of gifts first and claiming an adjudication on commencement of adult guardianship. Some were dissatisfied with their parent's decision to give all their properties to their sibling. Some were outraged as they discovered that their sibling had brought their demented parent to banks to withdraw money. Some were looking for their demented parent after their sibling had placed them in a distant nursing home and refused to share its location. Various people seek litigation for various reasons.

However, it is not easy to overturn a decision that was made before the commencement of adult guardianship. The children have to demonstrate that their parents were devoid of the mental capacity to make decisions at the time of the decision. Mental capacity to make decisions refers to the mental ability or intelligence to reasonably judge the meaning or result of one's action on the basis of normal perception and thinking ability, which should be determined individually in relation to a specific juristic action (see Supreme Court Decision 2008Da58367, Decided on January 15, 2009). A diagnosis of dementia is not enough to prove the absence of such mental capacity. They have to prove that their parent lacked the mental ability to the extent of not being able to understand the meaning of signing a gift contract at the time of making gifts. Most people choose to apply for a psychiatric evaluation, which examines the mental ability at the time of the legal action based on past medical...