When can a person make a valid will, trust, or other planning documents? Generally speaking, a person need only know their potential beneficiaries, knowledge of their property, and the ability to make and understand a plan for the distribution of their property. These requirements are generally interpreted in a way to presume that individuals have the mental capacity to make estate planning documents.
Knowing a person’s potential beneficiaries simply means knowledge of a person’s family. Does a person basically know who their children, grandchildren, and other close family members are?
Knowledge of a person’s property need not imply a knowledge of the exact value of every piece of property at any specific moment. A mere general knowledge of what they own suffices.
The ability to make and understand a plan also does not imply that the individual knows each and every clause of the document that they are signing. Mere knowledge of what type of document they are signing and the general effect of that document is enough for a document to be valid.
Even if a person has been diagnosed with a degenerative disease, such as Alzheimer’s, a person may still have the mental capacity to make and sign new estate planning documents. A person need only have the necessary mental capacity at the time the documents are signed. Even if they soon after lose their mental capacity, the previously signed documents are still valid.
Despite the presumption of mental capacity, estate planning documents should ideally be made sooner rather than later. The minimum mental capacity to make estate planning documents, while still legally valid, may not accurately reflect the wishes of a person who still has their full mental capabilities. A fully capable individual is better able to sit down with an elder law attorney to discuss the full range of options to distribute assets and to make plans for any and all foreseeable eventualities.
Please make an appointment with an elder law attorney in your area to make an estate plan that accurately reflects your wishes and prepares for future possibilities.
