Estate Planning and Diminished Capacity

Estate planning attorneys are constantly telling anyone who will listen: “Make your estate plan now; don’t put it off.” Primarily, that is because life is uncertain. Even a young person in good health can be struck down by a sudden illness or accident. If that happens, it is so much easier on everyone involved to have that person’s wishes set forth in a written estate plan. But there are other reasons that we urge people not to put off their estate planning, and one of those is the risk that as they age, they will no longer have the legal capacity to make a binding estate plan. It can be painful to think about, but it’s important to talk about estate planning and diminished capacity.

In order to be legally capable of making a valid will in Ohio, the person making the will (the testator) must be able to:

• Understand the nature of the business in which he or she is engaged;
• Comprehend generally the nature and extent of his or her property;
• Hold in his or her mind the names and identity of those who have natural claims upon his or her bounty; and
• Be able to appreciate his or her relation to the members of his or her family.

This is a reasonable standard; you should be able to know what you’re doing when you make a will, what you have to leave to your loved ones, and who those loved ones are. One problem testators and their families have is that reaching a point of legal incapacity usually happens gradually, over a period of years. People close to an older person may not realize that he or she is having serious memory problems until those problems become advanced. By the time an adult child thinks to ask Mom or Dad if they have a will or estate plan, it might be too late to make one. Or an adult child might move in to an elderly parent’s home to help care for them, and realize that they need an updated estate plan.

Is Your Loved One Capable of Making an Estate Plan?

If you find yourself in the position of having an older relative who needs an estate plan, but has some memory problems, you are not alone. Estate planning attorneys frequently deal with families in which an adult child brings an older parent or other relative in to make an estate plan. You will be glad to know that most estate planning attorneys are not only experienced in dealing with these delicate situations, but have ethical rules in place for the protection of vulnerable clients.

Let’s say that an estate planning attorney is visited by Joe, an elderly man and his adult son, Chris. Joe hasn’t updated his estate plan in over ten years. Chris is offering to pay for an updated plan for his father. Chris brought Joe in, he explains, because he has recently moved in to help care for him after Joe’s wife died. Because of this, Chris says, Joe wants to change his will to leave more to Chris and less to his two daughters, Alice and Betty, who live out of town and don’t come around to help. Joe lets Chris do most of the talking, even when the lawyer addresses questions directly to Joe.

What is going on? Is everything just as Chris says? Does Joe, in fact, want to make a new estate plan recognizing Chris’ role as caregiver? Or is Chris exerting undue influence on Joe, pressing him to change his will so that Chris will get a greater share of the estate? Does Joe have the legal capacity to make a will?

An experienced and ethical estate planning attorney will recognize that Joe is his client, even if Chris is paying the bill (and even if Chris himself is one of the attorney’s clients). He will pay attention to things like whether Chris seems overly invested in the estate planning process for Joe and if he is unwilling to let Joe speak with the attorney alone. If the attorney does not feel confident that Joe has the legal capacity to make a will, and that the plan described is truly what Joe wants, he should not prepare the will.

If you were in Chris’s shoes, you might need to take your parent to a physician who could help to document his or her legal capacity. If your parent had the capacity to grant you power of attorney, you might also want to encourage them to do so, so that you could take action and make decisions on their behalf in the event they become unable to manage their affairs. When dealing with the attorney, you would also want to let your parent make clear that they were able and willing to make an estate plan.

Being Proactive Regarding Estate Planning and Diminished Capacity

As you can see from the above scenario, the best time to make an estate plan is before you need one. An estate plan includes more than a will; it may include a trust, and it should include powers of attorney for both financial and medical matters. Hopefully, your parent will never experience diminished capacity such that he or she will be unable to make or update an estate plan. But if it should happen, you will both feel better knowing that a valid estate plan is in place.

There is no time like the present to initiate a conversation with your parents about their estate plan and if there is anything they need to update. While you are at it, consider updating your own estate plan. Someday, your children will thank you.

You may also be interested in:

• Can Your Agent Under a Power of Attorney Get Your Health Care Information?