Legal Capacity Consequences

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 – consent to treatment, make a Will, Trust or Deed, and make 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 to be equal to that of him 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.

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Tom Tuohy is the founder Tuohy Law Offices.

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