Considerations When You Create An Estate Plan: Legal Mental Capacity Requirements Vary Depending On The Legal Documents

The best way to avoid having to deal with the legal ramifications of diminished mental capacity is to create an estate plan and asset protection plan.

Create your estate plan while you are of sound mind, and update it as needed. You must have legal “capacity” to sign these documents. This means you understand what you are signing and its impact.

Mental capacity often declines with age, especially with conditions like Alzheimer’s disease. It can also change suddenly due to an accident or illness. This can affect people at any age, not just older adults.

That’s why it’s important to act early. Create your estate plan well before you need it.

Mental Capacity Can Vary From One Moment Or One Day To The Next

If you are helping a parent or loved one create or update an estate plan, be mindful of mental capacity. Capacity can vary based on the condition, time of day, and medications. A person may seem clear and alert one moment, then confused the next.

Different legal documents also require different levels of understanding. For example, entering into a contract usually requires a higher level of capacity than signing a will.

Capacity standards can also vary by location. The legal requirements for each document may differ from one state or jurisdiction to another.

The Duty Of Estate Planning Attorneys Is To Ensure Competency When You Create An Estate Plan

Outside of signing legal documents, there is usually no need to assess someone’s mental capacity. Attorneys must follow laws that protect clients who show signs of diminished capacity.

Courts and healthcare providers typically perform formal capacity evaluations. However, family members and advisors often recognize the early warning signs. For example, a parent may struggle to remember names, appointments, or important events. An attorney may notice a client cannot clearly communicate decisions or act independently.

If someone may challenge an estate plan, a formal capacity evaluation becomes especially important. It helps ensure the plan remains valid and reflects the person’s true intentions.

Please Don’t Procrastinate

With Alzheimer’s Disease on the rise and deadly viruses popping up more frequently it’s impossible to know when an estate plan will be needed. But, at some point, an estate plan is going to be an important part of most people’s transition from this world to the next. Making that transition smooth for the loved ones left behind is one of the greatest gifts we can leave. If you have not yet created an estate plan, please do not procrastinate. Give our office a call.

   

Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!