When is it too late to create a Trust, Will, or POA?
As your loved one grows older they often become more reliant on others for help. This can start out slow, but it can just as quickly require full-on care. It’s challenging when family members all of the sudden find themselves needing to help their loved ones with their affairs, but unfortunately for many they wait until it’s too late to get help…
Why it's easy to wait
Many seniors are reluctant to even discuss financial or legal affairs such as this with their children. Certain necessary safeguards such as powers of attorney (POA) are mistakenly viewed as a loss of independence when that couldn’t be further from the truth.
You may have seen trying to discuss these issues within the family can anger your loved one, but you’ll be relieved to know that an elder law attorney can oftentimes help keep a warm and positive tone to these conversations.
Failing to plan can result in consequences for both parties. By the time many feel it’s time to take action it can be too late and when the time comes an attorney must decide if the person is competent enough to make the decision to have legal documents made on their behalf.
Capacity requirements for legal documents
Mental capacity is a complex concept that is not always black and white. This is especially true when dementia is involved. A senior with cognitive decline may experience moments of lucidity in which they can legally sign valid documents such as trusts, powers of attorney, and wills. One key thing to consider is there are different levels of lucidity required to execute different types of legal documents.
Last Will and Testament
Many are surprised to find out a person with Alzheimer’s may still have the capacity to make a valid will, but it requires the highest level of legal capacity.
General requirements for testamentary capacity
- The testator must know the people around them such as their spouse and children.
- The testator must comprehend what kind of assets they have and their value.
- The testator must generally understand what they are signing.
- The testator must be able to know how they wish for their property to be divided.
Power of Attorney documents
Trusts and will are important, we all know that. But, just as important, if not more important are powers of attorney. Thankfully, a person with dementia or Alzheimer’s is not barred from executing legal documents such as these. In the moment they need to know what powers they’re granting their agent and be able to articulate that they trust and are comfortable with the agent their appointing.
If a lawyer determines the client lacks capacity, then the only other way to help the person is for a family member to seek legal guardianship over him or her. Unfortunately, this costs many thousands of dollars and requires you to file additional pleadings in court each and every year.
The best way to avoid issues down the road is to consult with your local elder law attorney to figure out what plan best suits you now as soon as conveniently possible. Even if your loved one is resistant, get them in and you’ll be shocked at how buttery smooth the conversation flows.