I’m occasionally asked if an individual can create or update an estate plan if a doctor has opined that the individual can no longer make sound decisions or the individual has a court-appointed guardian or conservator. The short answer: It depends.
A number of factors impact whether an individual has the mental capacity necessary to make a will or trust. Basically, as long as a person (1) understands the nature and extent of her property, (2) knows who are the natural objects of her bounty (usually, those closest on her family tree), (3) understands the property disposition spelled out in her will or trust, and (4) is making her estate plan of her own free will, she has the requisite “testamentary capacity” to make a valid will or trust.
Testamentary capacity is measured at the time the documents are signed. As long as the four requirements listed above are present at that moment, an individual’s estate plan can be valid even if that individual is drug addicted, depressed, mentally ill, physically infirm, vulnerable to undue influence, or has a court-appointed guardian or conservator.
If your loved one needs estate planning and is infirm or vulnerable in some respect, it is essential that he or she works with estate planning attorney who understands the importance of identifying and dealing with red flags that might subject the resulting estate plan from challenge by a disgruntled heir.
Questions? Please call us at (248) 477-6300.