In estate planning, a challenging situation arises when an elderly parent begins to show signs of diminishing capacity, such as symptoms of Alzheimer’s or dementia. Unfortunately, this is an all-too-common issue.
Clear Counsel Law Group frequently receives inquiries from individuals concerned about their parent’s ability to amend estate planning documents under these circumstances. It is a sensitive issue that families need to consider ahead of time to avoid future complications and disputes. Families desiring to honor the wishes of their loved ones also need to keep in mind how the law treats capacity.
The Challenge of Amending Estate Documents
When an elderly parent starts to lose their mental acuity, families often wonder if it’s still possible to amend their will or other estate planning documents. This is especially pertinent when changes have been discussed but not implemented before the onset of symptoms. The primary concern here is whether the parent still possesses the necessary legal capacity to make these changes.
Understanding Testamentary Capacity vs. Contractual Capacity
Legal capacity, in the context of estate planning, can be divided into two categories: testamentary capacity and contractual capacity.
- Contractual Capacity: This is the higher standard of mental acuity, requiring the individual to have a clear understanding of business dealings and the implications of contractual agreements. This is the level of capacity needed to execute a power of attorney or enter into binding agreements.
- Testamentary Capacity: This requires a lower threshold than contractual capacity. It refers to the basic understanding of how one wants their assets distributed after passing away. Even if a person may not be capable of handling complex business matters, they may still possess testamentary capacity if they can clearly state who they want to inherit their assets.
Medical Professionals Assess Capacity
Determining whether a person has the necessary capacity to amend their estate planning documents often requires input from medical professionals. Attorneys cannot determine capacity, either contractual or testamentary. Both of these require a diagnosis or evaluation of the medical conditions affecting a person’s cognitive abilities conducted by a doctor. A statement or certification from a doctor can provide clarity on whether the individual still has the capacity to make the proposed changes to their estate plan.
Why Timely Action is Essential
The best time for estate planning is when everyone involved has full mental clarity. If you anticipate that capacity might become an issue for your parents or yourself, it’s crucial to act sooner rather than later. Waiting until capacity diminishes can complicate the process significantly and might even make it impossible to carry out any desired changes.
In situations where there’s uncertainty about a parent’s ability to amend their estate plan, consulting with legal experts is vital. The estate planning attorneys at Clear Counsel Law Group can guide you through the process. They help assess whether amending the documents is possible, and ensure that all legal requirements are met. These situations are delicate, and it takes a committed approach to ensure families can make these decisions compassionately and with full knowledge.