Mental incapacity and its potential impact on your estate, P.2

In our last post, we began looking at the issue of mental incapacity, and the importance of taking appropriate steps to address this issue in estate planning. Failure to do so opens up a greater possibility of probate disputes down the road, and can complicate the process a great deal, depending on the circumstances.  

Addressing the issue of incapacity in estate planning is, first of all, a matter of demonstrating that the testator or the author of the will, does have capacity. This means demonstrating that the individual understands his or her property, how and when it will be disposed, and so on. This should be done through the language of the will itself, but it can also be done by communicating one’s wishes to family members, leaving behind written or verbal instructions consistent with the will, or some other such means.  

Keeping all family members in the loop about one’s wishes regarding the disposition of one’s property, and one’s clear grasp of the nature of the property and instructions for its disposition, can go a long way toward preventing legal challenges later on.  

Another step one can take to prepare for potential incapacity is to assign powers of attorney. Powers of attorney can be set up for both medical care and for the management of financial matters, but the two are separate under Michigan law. On the medical side, in addition to executing an advance directive for health care, one can set up a durable power of attorney for health care, which gives a trusted individual the ability to make decisions regarding medical treatment, personal care, mental health care, and post-mortem organ donation when it is determined that the patient is unable to participate in medical treatment decisions.

Specific legal requirements must be met to execute a durable power of attorney, and also to revoke a durable power of attorney, so it is important to work with experienced legal counsel.

In our next post, we’ll look at durable powers of attorney for financial matters, as well as another options for addressing potential incapacity in estate planning.