Whew! What a year. It has gone by so fast.
It has been several months since I’ve been able to send out this newsletter.
I’d like to take this opportunity to wish everyone a very happy holiday season and coming New Year.
I’ve worked very hard this year in my law practice and that’s why I’ve been remiss in sending out this newsletter.
Some of you know that I was previously a published author, journalist and academic. Writing and publishing is something I’ve always loved. While I continue and will continue to practice estate planning law full-time for the long run, I have also returned to being a writer. This year I started a web site and blog called All About Thriving. I post almost weekly about a variety of topics, from health and wellness, to the politics and sociology of cancer, spirituality, and psychological well-being.
Please check out my blog at http://www.allaboutthriving.com, and if you’d like to receive it, please subscribe.
Now, having made that announcement, I’d like to say a bit about a trend I’ve had in my office this year.
Many of you have already done your estate planning, and you’ve done it when all is relatively calm and when all parties have their wits about them. That’s great.
What’s not so great is when people wait until it’s too late or almost too late to start their estate planning.
I had several situations this year in which adult children brought their very elderly parents to my office with the idea that we would all meet together, I’d draft something, and then the elderly parent would simply sign it. It often doesn’t work that way!
In order for someone to be legally qualified to execute a legal document, he or she needs to have a bare minimum of mental capacity. To make a will or trust, he or she must have what is called testamentary capacity. The client needs to be able to articulate in plain language what he or she intends, as far as who will inherit his or her property and who shall serve in the role of administrator. He or she needs to have a basic idea of what his or her property consists of. It’s a pretty low threshold to meet. And yet, for elders who have a fairly advanced degree of dementia, it’s often impossible to meet this standard.
Very often, adult children don’t have an accurate view of their parent’s testamentary capacity. Conversations may have devolved to the point where an adult child has gotten into the habit of saying: Mom, you really do want me to pay your bills, don’t you (nodding)? The parent picks up the cue and nods back and says: Yes.
But when the parent is sitting in the attorney’s office and the attorney asks: Mrs. Smith, why have you come to my office today, the parent may then be completely unable to come up with an answer to this question.
I had this happen several times this year. An elder may present herself or himself as being very social, personable, and even competent in certain ways, and yet lack the minimal mental capacity needed for an attorney to work on an estate plan. In such cases, I can’t proceed. Instead, I may refer the adult child to an attorney who works on court-established and supervised conservatorships. Or the elder may simply have to do without an estate plan.
My advice, as always, is to do an estate plan well before one gets so old that lack of capacity may become an issue. If you have aging parents, consider suggesting to them that they not wait until “later” because later is often just too late.
Wishing everyone a very happy, healthy and enjoyable holiday season!
