Mental Health and Incapacity

Having mental health issues does not automatically mean the person is disabled. What’s more, there are many types of disability. A common example is when we are asked to do planning (such as updating their Will or Power of Attorney) for a someone who appears to have limitations. We use a set of standard questions and observations to determine capacity, and of course a letter from their doctor carries a great deal of weight. Our concerns about that person are first, whether he or she is sufficiently aware of what a Will or Power of Attorney is, and secondly, whether the requested changes appear reasonable or suspicious. Our first responsibility is not to help someone who is taking advantage of a disability to benefit themselves.

What is Incapacity?

A person can be a client of ours, even with some level of incapacity. The legal guideline is that the person needs to understand their family, have a general understanding of their assets, and be aware of what it means to name an executor, make a Will, and choose an Agent for theri Power of Attorney. Examples of conditions that can lead to incapacity include developmental delays, dementia, Alzheimer’s disease, brain injury, stroke, and mental illness. It’s important to note that incapacity is not the same as a lack of mental capacity. 

Changing Helpers and Beneficiaries

If the client tells us they want to name a new Power of Attorney Agent, or Executor, or the distribution plan of their Will, those changes must be for an objective reason. By the way, just as we are evaluating the client’s capacity when we meet with them, we also may be evaluating the other people in the room – do all the children agree with the change? Were any family members excluded from the meeting? Choosing a new Power of Attorney Agent could be the most critical decision of all, since this change will likely be the last change the client will ever make. If the client is new to us, we’ll ask if they’ve been to other lawyers before coming to us (that’s a big red caution flag, by the way). The best situation is when all the children are in the meeting (physically or virtually) and they all agree to the change. If we decline the engagement, it will be either because we judge the client’s disability is too complete, or because we sense a “power grab” by one of the children. 

Estate Planning For Incapacity

Every estate plan is (or should be, if it’s more than “getting a Will”) a plan for disability. Your Financial and Medical Powers of Attorney designate the people you trust to make decisions for you. Ideally, you’ll name one or more backup Agents, in case your first Agent choice is unable to act. If you’re using a Trust, you’ll name one or more Successor Trustees. Your Agents and Trustees are available not only if you’re permanently disabled, but also if your disability only lasts for a few weeks. To make your plan more personal, you may direct that your financial advisor, your tax preparer, or other professional be consulted by your helper on a regular basis. You may dictate or write down guidelines for financial or medical decisions. For example, you may say that in case of disability, your investments should be adjusted to create more income. Or (although you should have done this already, right?) you may direct that your estate plan be changed to protect your home and life savings from being lost to the nursing home.

In a future post, you’ll learn the two primary reasons why most Powers of Attorney need to be updated, and the price you play if those key updates aren’t done.

These difficult choices don’t have to be made alone. At HighPoint Law Offices, our team of compassionate and knowledgeable attorneys can help you plan that will enable you to age with dignity regardless of your circumstances. Reach out by calling (215) 997-9773 for a free consultation today.

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HighPoint Law Offices PC

At HighPoint Law Offices we support individuals, families, and businesses of all backgrounds with estate planning services that address their unique wishes, goals, and challenges.

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