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Incapacity – A Problem for Estate Planning Law Firms

Although medical advances have extended human life expectancy, there is also a greater likelihood that we will become incapacitated before dying. It is important that the estate planning law firm recognizes when someone is incapacitated and therefore unable to execute estate planning documents or manage their affairs.

Estate planning requires that the person executing the documents has the ability to participate in the design and has a full understanding of their plan.  At what point, however, due to age, injury or illness, might you have too little understanding to make legal plans? That’s a tough call.

What is incapacity for legal purposes, how do you define it, and how do you keep an accusation of incapacity from ruining your highest hopes for your loved ones? Much is at stake. The estate plans you make affect your life, the lives of your loved ones and, certainly, the management and disposition of your hard-earned assets.

The topic of capacity or incapacity, that is, being “of sound mind and body” is indeed a difficult one. This issue was addressed in a recent article in the Journal of Financial Planning titled “Defining Incapacity in the Modern Estate Plan.” The article is based on California law, but if you are caring for an elderly loved one, the message is the same: defining legal capacity can be incredibly difficult.

Much ink has been spilled by lawyers, judges, and family members over the years defining it, too. The biggest teaching point from the article (and my own experience with clients) is to “ink” your own estate plans sooner rather than later. You likely will never again be as sharp as you are today.

So, the moral of this story? Procrastination can sound the death knell for proper estate planning.

You can learn more about elder law planning  on our website. Be sure to sign up for our complimentary e-newsletter to stay abreast of issues like these that could affect you, your loved ones and your estate planning. 

Reference: The Journal of Financial Planning (May 2012) “Defining Incapacity in the Modern Estate Plan

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