This November, many of our Hoosier Estate Planning blog posts are devoted to highlighting estate planning pitfalls to avoid. Some big mistakes made by celebrities help make the point…
Not every plan follows the usual pattern of leaving assets to family members and favorite charities. If your wishes involve arrangements that are somewhat different from the “normal”, it may become important for your heirs to prove you were mentally competent at the time you created this unique estate plan.
Hotel tycoon Leona Helmsley cut two of her grandchildren out of her $5 billion estate, and left $12 million for her dog. The grandchildren sued, claiming that Helmsley had not been mentally fit at the time she created her will and trust. The lesson, says Forbes contributor Erik Carter, is this: If you’re planning do anything unusual that might leave family members disgruntled, have an attorney, and perhaps even a physician, conduct an evaluation attesting to your mental capacity to make a will.
A second example Carter cites is blues singer Etta James, whose spouse and son fought over James’ competency to sign a power of attorney. Sign your power of attorney, Carter advises clients, long before you need it.
“Proper execution of a legal instrument requires that the person signing have sufficient mental capacity to understand the implications of the document,” explains ElderLawAnswers.com.
One side of that issue, the authors go on to explain, is that “capacity” isn’t a rigid black line, where either you have it or you don’t. In fact, a client’s abilities can change from day to day, depending on the course of an illness, on fatigue levels, and on the effects of medication.
At Geyer & Associates, we deal with many different situations. If the client’s wishes are ‘typical” (say giving the estate to the spouse, and then to the children equally, should the spouse not survive the client), it may be less important to prove capacity. But what if a client wants to give her estate entirely to one child, with nothing passing to the other children? We suspect a challenge to our client’s mental competence might later arise.
As elderlawanswers points out, “Doctors and psychiatrists cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment, but they can provide a professional evaluation of the person that will help an attorney make this decision.”
The question that our attorneys must clients answer as we’re working together on estate planning documents, is this: “Is anyone likely to challenge this transaction?”
– by Rebecca W. Geyer