How Cognitive Decline Can Affect Estate Planning Validity and Why Planning Early Matters
Estate planning is more than just planning what happens to your property after you die. It is also ensuring that your wishes are carried out. Cognitive decline is one factor that could potentially compromise an estate plan, even if it is well-planned, as memory loss and a decline in mental capacity could potentially challenge estate planning documents, sometimes many years after they are created.
Knowing more about what happens in terms of cognitive decline and estate planning could prevent family disputes and protect loved ones from costly legal battles.
The legal standard: Mental capacity matters
Essentially, to draft a valid will or trust, an individual must be of legal capacity at the time that they sign the document. Capacity is defined as an individual who understands what a will or trust is, is aware of the general value of their assets, knows their close family members, and understands what a trust does in terms of property distribution.
There does not have to be dementia, Alzheimer’s, or other brain disorders for your family to contest a trust or will.
Why cognitive decline leads to will contests
If estate planning is undertaken after cognitive problems have started, disappointed heirs may claim that estate planning was done without capacity or under undue influence. These claims are especially common when a new estate plan significantly changes previous ones. This could include cutting a family member out of the will or giving all the assets to one child over the others.
Timing is another factor that is often scrutinized by the court. Estate plans that were made shortly before a major health decline or hospitalization/diagnosis can be scrutinized by the court. Although a person may have felt that they were thinking clearly, a lack of documentation can become a problem when they pass away.
The importance of planning early
One of the best ways to prevent an estate plan from being contested is to create the plan well before the onset of cognitive decline. Creating an estate plan early will help ensure it is signed when the person has the capacity to make sound decisions. And, when the need arises to make changes to the plan, the changes can be made gradually instead of during a health crisis.
How proper planning can help
Experienced estate planning and elder law attorneys take steps to minimize risk in cases where cognitive decline is a factor. These can include things like client interviews, meeting notes, and even working with medical professionals to establish capacity at the time the will or trust is executed.
Advanced planning tools like durable powers of attorney and healthcare directives can be very important. These documents enable trusted individuals to intervene in times of difficulty and can help prevent exploitation or court intervention.
Talk to a Virginia Beach, VA, Estate Planning Attorney Today
The Law Office of Angela N. Manz represents the interests of individuals seeking to update or draft an estate plan. Call our Virginia Beach estate planning lawyers today to schedule an appointment, and we can begin discussing your next steps right away.