Legal Competency and Your Older Parent: When Is It Too Late to Make a Will?

As the adult child of an aging parent, you likely already are paying attention to the overall health of your mother or father. This should include tracking your parent’s physical and mental health. As your parent ages, some legal matters may not be tended to. Perhaps these legal matters would have been addressed some time ago in an ideal world. However, as the cliché goes, we do not live in a perfect world.

In some situations, people in their later years still need to prepare a last will or established trust. They may have yet to create a power of attorney for healthcare or need a financial power of attorney.

If legal needs need to be met, an important consideration must be addressed. Your aging parent must be legally able to create the documents or instruments we just mentioned. In a moment, we will discuss what legal capacity means in the United States to create instruments like a last will and testament.

What Is Legal Capacity?

According to Cornell Law School, in the context of last wills and testaments and trusts, the maker of a will must have what is known as testamentary capacity. Testamentary capacity is the mental state that a person must possess when making a will for the will to be valid.

Legal capacity (or legal competency) in this regard means that:

  • An individual needs to know that he or she is creating a last will or a trust
  • An individual must have a general understanding of the nature and extent of his or her property
  • Finally, an individual must have an understanding of to whom the property will go under the will or trust he or she is creating

Legal capacity is the same regarding a power of attorney. A person must understand what a power of attorney is intended to do. In addition, that individual must understand who is appointed to serve as the creator of the instrument’s agent to carry out his or her intentions in a power of attorney.

Mental Capacity Versus Physical Disability

The mental capacity to sign a legal document should not be confused with the physical ability to sign one’s name. Laws dictating how legal documents can be signed by individuals with physical disabilities (and how this act must be witnessed or notarized) vary from state to state. Some states permit a person to sign an “X” (known as a “mark”) that will suffice instead of a signature. If an individual cannot make a mark, some states permit directing someone else, such as a notary or a disinterested third party, to sign on their behalf. The bottom line is that a person can be significantly physically disabled. Still, if he or she has an appropriate mental capacity, that person can legally create a will, trust, or power of attorney.

Importance of Capable Legal Assistance

The American Bar Association explains the importance of being proactive and getting professional assistance when it comes to estate planning:

Of course, the best practice is not to wait until it may be too late to engage in proper legal planning. If possible, make a point of having these conversations with family members while they are still of sound mind and able to comprehend exactly what they are signing and why. These discussions can be difficult, but an experienced elder law attorney can help with this process. If a loved one has procrastinated on their legal preparations, an attorney can determine if they meet legal competency requirements and even help with guardianship proceedings.

Eleven Steps to Assist Your Senior Parent With Estate Planning and Related Matters

When your parent is legally competent and can undertake appropriate estate planning, eleven steps need to be borne in mind:

  • Have a conversation with your parent about estate planning issues
  • Assist your parent in determining estate planning goals and objectives
  • Detail your parent’s assets and debts
  • Select beneficiaries
  • Select a personal representative or a successor trustee
  • Select an agent for your elderly parent’s financial affairs
  • Select a patient advocate (for the future) during the estate planning process
  • Gather important documents
  • Record and document burial issues
  • Create estate planning documents for your elderly parent
  • Discuss long-term care planning options and desires with your parent

Challenging Legal Documents Due to an Allegation of Legal Incompetence

Unfortunately, with some regularity, challenges are made to legal instruments like a will or trust agreement. The most frequently occurring scenario is a family member who has been left out of a will or a trust by an individual who has passed away. This disenfranchised family member takes legal action to have the will or trust set aside. A commonplace argument used to take this type of action is that the person who made the will or created the trust lacked the mental competency to do so.

We mention challenging legal documents in this manner to further underscore the necessity for a person to be as proactive as possible in undertaking estate planning. Certainly, there are situations in which a person doesn’t start this process until later in life. (Financial planning professionals frown on that strategy, but that is a discussion for another time.)

If you are the adult child of an aging parent who has yet to commence undertaking estate planning, creating a will, and so forth, encouraging your mother or father to do so as soon as possible is a reasonable, if not a necessary, strategy. Your parent needs to ensure that this is completed so that his or her wishes are fulfilled. And it must be undertaken before a point in time at which questions might arise regarding his or her competency when creating these types of instruments.