There is a universal truth we must all accept: one day, we will die. When we die, what happens to our physical remains, our life’s work, and everything else we leave behind is left to those who cared for us. In some cases, it is left to strangers to execute the wishes of someone who dies with no close relatives or friends, or who died intestate – without a will. It is possible to go your whole life without a will and never be impacted yourself, but your loved ones, your financial assets, and your property will all be affected after you pass on.
To avoid the issue of what is to be done with you and your estate, it is a good idea to have at least created a legally binding will, which has been witnessed and notarized. Other good items to have in place (before you need to invoke them) are Powers of Attorney (which we talked about in a previous post) a Living Will, and/or a living trust which are documents which can cover your wishes should you become incapacitated. Some decisions you can make in a living will are whether to use a feeding tube, whether you would like to be visited by a chaplain, or what conditions you deem necessary to end life support. These decisions help your family to follow your express wishes, instead of guessing after the fact.
Testamentary Capacity: What It Is and Why It Matters
Testamentary capacity refers to a person’s ability to understand and execute a will. This is important because most people over the age of 18 are thought to be legally competent and thus capable of signing and executing a will. Signing a will implies that the person signing is capable of understanding that they are signing the will. It also means understanding the nature of the property which is affected by the will, and the people who will be affected by the will. These may sound like simple tasks, but there are many reasons why someone may challenge a will based on testamentary capacity.
For example, someone who suffers from delusions may try to make changes to their will which have no basis in factual reality. If the person suffering from delusions succeed in changing the will, and the disinherited heir can prove that the person suffered delusions at the time of the changes, the disinherited heir may get the will invalidated. This also applies to cognitive and degenerative diseases such as Parkinson’s disease, Alzheimer’s disease, and dementia. If a person suffers from a disease which makes them incapable of understanding that a will is a binding arrangement of what is to be done with their assets and estate upon their death, then they are not legally capable of signing said will.
It is important to create estate plans early in a diagnosis, while the person may still be deemed legally testate. When changes are made later on in the course of a disease, sometimes inheritors challenge the decisions as being unduly influenced by outside sources. No matter what the challenge to the will, it will only happen in a courtroom after the person dies. To ensure that your wishes are carried out in the manner you wish them to be, it’s best to discuss them with your family up front, and to make as thorough an estate plan as possible. It is also wise to go through an experienced and licensed estate planning attorney, as this can help keep you from mistakes that could cost you more later down the line.
Making An Early Estate Plan Can Bring Peace of Mind
Having your documents in place early in life never hurts – you can’t predict a car crash, serious illness, or other accidental cause of death or incapacitation. Putting your estate into a trust, and making sure that the people you plan to execute your wishes are individuals you trust to actually follow your wishes, can all help make your end-of-life planning easy. It’s not a pleasant subject to think about, but it is an even worse one to spring on your loved ones by unexpectedly dying without any plans in place.
For people who are looking to move into care somewhere like Landmark Memory Care, you should always ask what types of estate planning documents are required before you or your loved one can become a resident. It is not uncommon for places to require proof of basic estate planning – such as Powers of Attorney and other decision-making paperwork that would need to be in place should a resident require swift treatment. For more information on what Landmark Memory Care requires, please visit our website or contact us for more detailed information.