Estate Planning with an Existing Disability
April 17, 2013 By Law Office of Douglas A. Oberdorfer, P.A.
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Experts frequently advise adults to create an estate plan early on in order to have their life and financial plans arranged in the event that they become disabled. But they do not often recognize the obstacles of those who are already suffering from a disability.
Estate planning for people whose mental capacity is in question can be exceedingly more challenging than for those whose health is in tip-top shape. The good news is that if you have a disability, there are steps that you can take to help you accomplish your estate planning goals.
Many people are unprepared to deal with the financial and legal consequences of their disability because they already have various health and emotional issues on their plate. The truth is, an estimated 14 million baby boomers are expected to develop dementia, not to mention numerous of other debilitating mental disabilities. Due to lack of preparation, many of these people will pass away without having any say in what happens to their finances, property and personal possessions.
When planning your estate you will want to consider your last will, durable powers of attorney and living will. To put together a valid will, there are certain requirements in regards to mental awareness. For a person with a disability to legally create a will they will need to meet certain minimal requirements, otherwise their options may be restricted. The testator must be an adult (age 18 or older) and must be capable of knowing and understanding in a general way (i) the nature and extent of his or her property, (ii) the natural objects of his or her bounty, and (iii) the disposition that he or she is making of that property, and must also be capable of (iv) relating these elements to one another and forming an orderly desire regarding the disposition of the property.
To determine and prove adequate mental capacity an attorney and physician should be consulted. Because the wills of people with diminished mental capacity are challenged and contested far more often than others, it is important for a doctor to have a full understanding of the implications of the assessment, and to have his or her opinion clearly expressed in writing. It is also a good idea to have someone videotape the execution of the will in order to affirm the testator’s mental capabilities. An attorney must then draft a memorandum to be placed in the testator’s file to clarify how the will is to be carried out in the event of the testator’s death. If a person has been assessed and judged to be incapacitated, the will can typically be found legally invalid. If this is the case in your situation, you are encouraged to contact a knowledgeable estate-planning attorney who may be able to help you – there have been cases in the past in which an adjudicated incompetent person has regained the rights to create a valid estate plan.
When it comes to naming a durable financial and health power of attorney, the person or persons that you choose to be responsible for making decisions for you in the event that you can no longer do so, it is important to be sure that the person that you choose is not at risk of being mentally incapable of doing so. Also, if it has been determined that you are no longer able to decide your powers of attorney or create your living will, a spouse or other family member may seek guardianship through a proceeding with the court.
Legal, financial and medical experts strongly encourage people suffering from disabilities to begin building an estate plan in the very early stages of their disability, if they have not yet done so. As time elapses and your disease becomes more debilitating your wishes are at higher risk of being challenged or nullified. It is imperative that you contact an estate planning attorney immediately if you are concerned that you may have already crossed that threshold.
ABOUT THE AUTHOR: Douglas Oberdorfer
Probate attorney, Douglas A. Oberdorfer has extensive experience helping the physically and mentally disabled plan for the future of their assets and family. Mr. Oberdorfer can help you create and effective estate plan and keep your family out of probate court.
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More information about Law Office of Douglas A. Oberdorfer, P.A.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Many people are unprepared to deal with the financial and legal consequences of their disability because they already have various health and emotional issues on their plate. The truth is, an estimated 14 million baby boomers are expected to develop dementia, not to mention numerous of other debilitating mental disabilities. Due to lack of preparation, many of these people will pass away without having any say in what happens to their finances, property and personal possessions.
When planning your estate you will want to consider your last will, durable powers of attorney and living will. To put together a valid will, there are certain requirements in regards to mental awareness. For a person with a disability to legally create a will they will need to meet certain minimal requirements, otherwise their options may be restricted. The testator must be an adult (age 18 or older) and must be capable of knowing and understanding in a general way (i) the nature and extent of his or her property, (ii) the natural objects of his or her bounty, and (iii) the disposition that he or she is making of that property, and must also be capable of (iv) relating these elements to one another and forming an orderly desire regarding the disposition of the property.
To determine and prove adequate mental capacity an attorney and physician should be consulted. Because the wills of people with diminished mental capacity are challenged and contested far more often than others, it is important for a doctor to have a full understanding of the implications of the assessment, and to have his or her opinion clearly expressed in writing. It is also a good idea to have someone videotape the execution of the will in order to affirm the testator’s mental capabilities. An attorney must then draft a memorandum to be placed in the testator’s file to clarify how the will is to be carried out in the event of the testator’s death. If a person has been assessed and judged to be incapacitated, the will can typically be found legally invalid. If this is the case in your situation, you are encouraged to contact a knowledgeable estate-planning attorney who may be able to help you – there have been cases in the past in which an adjudicated incompetent person has regained the rights to create a valid estate plan.
When it comes to naming a durable financial and health power of attorney, the person or persons that you choose to be responsible for making decisions for you in the event that you can no longer do so, it is important to be sure that the person that you choose is not at risk of being mentally incapable of doing so. Also, if it has been determined that you are no longer able to decide your powers of attorney or create your living will, a spouse or other family member may seek guardianship through a proceeding with the court.
Legal, financial and medical experts strongly encourage people suffering from disabilities to begin building an estate plan in the very early stages of their disability, if they have not yet done so. As time elapses and your disease becomes more debilitating your wishes are at higher risk of being challenged or nullified. It is imperative that you contact an estate planning attorney immediately if you are concerned that you may have already crossed that threshold.
ABOUT THE AUTHOR: Douglas Oberdorfer
Probate attorney, Douglas A. Oberdorfer has extensive experience helping the physically and mentally disabled plan for the future of their assets and family. Mr. Oberdorfer can help you create and effective estate plan and keep your family out of probate court.
Copyright Law Office of Douglas A. Oberdorfer, P.A. - Google+
More information about Law Office of Douglas A. Oberdorfer, P.A.
View all articles published by Law Office of Douglas A. Oberdorfer, P.A.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
