Legal Capacity Consequences

Young male nurse holding hands of an elderly female patient in a wheelchair in a hospital

Legal Capacity  

The American Bar Association defines legal capacity as "the ability to perform a task or make a decision. State laws set out the standards of legal capacity for various tasks, such as consenting to treatment, making a Will, Trust or Deed, and making a gift or contract."

In Illinois, legal capacity depends on the circumstances:

  • Unless proven otherwise, every adult is presumed to be able to make health care decisions. An often confusing example is that diagnosing Alzheimer's or dementia will not necessarily prove a lack of legal capacity. However, diagnosing advanced Alzheimer's or dementia could likely prove that legal capacity is lacking.
  • Testamentary capacity: a person's mental and, therefore, legal ability to make or change a Will or Trust estate plan.     While you must be over age 18 to enter into any legal contract, Will, Living Trust estate plan, or Power of Attorney, you must also:

◦ Understand the nature and extent of your property.

◦ Remember your relatives and descendants.

◦ Be able to articulate who should inherit your property.       

While most people wait too long to make a Trust or Will estate plan or essential Health Care and Financial Power of Attorney documents, often people believe a relative needs more legal capacity to do so than they currently have. However, that, too, is objective. Like a contract, a Will requires the highest capacity level; you are of sound mind and memory.

The Consequences of Lost Capacity

Last week, I received a call from a grade school classmate. Two years ago, he asked for my advice regarding his mother, who was in her late 80s.

He said she wants her real estate equal to his and his three brothers. They all agreed that his two brothers, who live with his mother, would remain in the house, as both have lived there their entire lives and have special needs.

I clarified that he needed to act quickly to protect the house and his brother's ability to live there at their mother's death. His mother needed to make a Living Trust that protects her two sons' interest in her estate in a Supplemental Needs Trust at her death, or they would lose their SSI and Medicare or be required to reimburse the government for benefits.

The family house would be sold, and 50% of the value would go to the government. Worse yet, his brothers would lose the only home they had known.

My old classmate was calling to update his mother's Power of Attorney. He said he 'dropped the ball' on the Trust but needs the POA for the long-term care facility where his mother now lives with advanced dementia.

I don't have to tell you the rest. It is too late, and the home is lost.

Don't be my old classmate. Please don't wait to do what you need and someday find out it's too late. Get a Living Trust estate plan while you have the legal capacity and are still here.

Tom Tuohy
Tom Tuohy

Comprehensive Benefits of America

For an expanded presentation of asset protection and financial wellness strategies and to receive regular updates on strategies to protect what you have earned, visit and register with CBAPlan at the link below. Registration is free.

Visit or call 1-312-559-8444 for assistance with registering.

Tom Tuohy is the founder of Tuohy Law Offices.

The information being provided is strictly as a courtesy. When you link to any of these websites provided herein, Comprehensive Benefits of America, LLC does not represent the completeness or accuracy of the information provided at these sites. CBA does not provide professional financial, investment, tax, or legal advice. You should seek certified financial planners, CPAs, and attorneys for advice about your personal needs. See complete Disclosures and the CBA Security and Privacy policies.