At Trust & Will, we often discuss the importance of creating an estate plan while we are healthy and able to make sound decisions. However, life can throw unexpected challenges our way. What if you develop a condition that could impact others’ perception of your testamentary intent or mental capacity? Trust & Will shares what you can do to strengthen your estate plan to help ensure your wishes are effectively carried out.
Mental Capacity & Testamentary Intent in Estate Planning
Before we begin, it's important to highlight certain estate planning laws that surround the mental capacity and the free will of individuals.
Probate laws vary from state to state, including the basic requirements for an individual to form a legally valid Will. However, many of these requirements are consistent across the nation. Two key examples are:
Mental Capacity
Testamentary Intent
For example, California Last Will and Testament rules require that a Testator (a person creating a Will) be 18 years old and of sound mind, capable of reasoning and making decisions.
Mental Capacity
According to the Merriam-Webster Dictionary, mental capacity means having, "sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter."
In other words, it refers to an individual's ability to make decisions for themselves. Someone may lack sufficient mental capacity if they can't understand or retain information for long enough to make a decision, weigh advantages and disadvantages in order to make a decision, or communicate a decision made.
Mental capacity can be impacted temporarily or permanently. Examples of scenarios and conditions that impact mental capacity include:
Dementia
Mental illness
Learning disabilities
Stroke or brain injury
Substance or alcohol abuse
Serious illness
In the world of estate planning, a Testator must be of sound mind in order to create a legally valid Will in their state. While they may be able to create a Will, it is a question of whether or not the document will hold up in the court of law. Mental capacity is subjective. If a Testator's mental capacity is called into question, a judge will likely hold trial and gather evidence to determine whether or not the individual was of sound mind at the time the Will was created and executed. If they are determined to not have had mental capacity, then the Will may be deemed invalid and rejected.
Therefore, another requirement for creating a legally valid Will in all states is the gathering of witnesses and witness signatures to attest to the mental capacity of the Testator's mental capacity at the time of execution.
Testamentary Intent
Testamentary intent refers to a Testator's intent when executing their Will. They must have truly intended to sign their Last Will and Testament.
These laws are designed to protect individuals from undue influence and coercion. An individual who has insufficient mental capacity may not have adequate testamentary intent. Sadly, it is not uncommon for relatives of a Testator to commit fraud by taking advantage of their mental fragility (due to increasing dementia or mental illness). Individuals may try to influence the Testator to include them as a beneficiary of their Will, or appoint them as Executor or Power of Attorney and misappropriate funds.
Estate Planning for Individuals with Dementia
Living with dementia is a difficult reality for many individuals and their families. It not only affects one's mental capacity but also has a significant impact on their emotional well-being. During this difficult time, it can be overwhelming to think about creating an estate plan. But it is important to address this issue as soon as possible to ensure that your wishes are carried out and your loved ones are taken care of according to your wishes.
Creating an estate plan while battling dementia may seem like a daunting task, but with the right support and guidance, it is possible to make important decisions that will protect your assets and provide for your loved ones.
1. Consult a Trusted Individual: This could be a family member, close friend, or legal advisor. Someone you trust can provide support and help ensure your decisions align with your values and desires.
2. Seek Legal Advice: While it is not always necessary to seek legal counsel, in special circumstances it can be well worth the investment to seek the advice of an attorney who not only specializes in estate planning but also has extensive experience serving clients with your specific circumstances. They can guide you through any applicable legal complexities and help you create a plan that effectively captures your wishes.
3. Document Your Medical Condition: It's important to have a medical professional document your condition and mental capacity. This can be useful if your decisions are questioned in the future.
4. Review Existing Estate Plan: If you already have an estate plan in place, review it to ensure that it still aligns with your current situation and wishes. Any changes should be made under the guidance of an attorney.
5. Assign a Durable Power of Attorney: This is a legal document that gives someone you trust the authority to handle your financial and legal matters if you become unable to do so yourself.
6. Establish a Living Will and Advance Healthcare Directive: These documents express your healthcare preferences and appoint someone to make healthcare decisions on your behalf if you cannot.
7. Consider a Trust: A trust can provide for the management of your assets during your lifetime and after, providing clear instructions for how your assets should be distributed. A revocable living trust might be particularly beneficial as it can be adjusted if your situation changes.
8. Communicate Your Plans: Once your plan is in place, communicate it to your loved ones so they understand your wishes and know what to expect. This can help prevent confusion and conflict down the line.
The Importance of Choosing a Trustworthy Agent
Regardless of who you are, choosing a trustworthy agent is critical to any successful estate plan. However, this step requires extra emphasis if you are an individual living with dementia or other conditions that impact your mental capacity. This is because the likelihood of a proxy or agent stepping in to act on your behalf is more likely.
If you are legally incapacitated, then your Power of Attorney or Health Care Proxy will step in and manage your affairs and decision-making on your behalf. However, what if this position of power falls into the wrong hands? We've seen these types of issues become scandals, as recently as Britney Spears and the question of conservatorship abuse.
What you can do is empower yourself by selecting your own trustworthy agents who not only have the necessary legal knowledge but also understand your values and priorities. Further, they should be someone who will truly protect your best interests.
Choosing the right person to act as your agent can be a challenging task, especially when battling a condition like dementia. So, how do you ensure you are placing this pivotal role in the right hands?
Here are some tips:
1. Know Their Values: Your proxy should have a good understanding of your values, beliefs, and wishes. They should be someone who will respect these and make decisions that align with them.
2. Consider Their Emotional Strength: Being an agent can be emotionally challenging, particularly in situations involving health crises. The person you choose should be able to make level-headed decisions under stress.
3. Evaluate Their Trustworthiness: Trust is paramount. Consider their past actions and reliability. Are they known for acting with integrity?
4. Assess Their Understanding of Legal Matters: It's not necessary for your agent to be a legal expert, but a basic understanding of legal responsibilities and duties can be helpful.
5. Open Communication: Good communication skills are a must. They should be comfortable having potentially difficult discussions with healthcare providers, attorneys, and your family members.
Selecting the right agents is paramount to creating an ironclad estate plan that meets your circumstances. Be sure to learn more about choosing a Power of Attorney and Healthcare Proxy in our Learning Center guides.
Create your Ironclad Estate Plan for Peace of Mind
Now that you have all this information and helpful tips, what is your next course of action?
If you already have an estate plan in place, it's time to integrate. Review your estate planning documents today and incorporate any changes necessary to protect yourself and your loved ones even further.
New to estate planning? Don't worry! We have just what you need. Trust & Will is a trusted online platform that provides an easy, seamless experience so that you can put your Will, Trust, and Healthcare documents in place. Find out how you can get started today.
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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
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