Estate Planning Attorneys
Congratulations to one of our Managing Partners, Mary E. Vanek, on passing the Florida State Bar! Mary is now able to assist our clients with their Florida related legal issues, including estate planning and estate and trust administration services in Florida. Please email Mary E. Vanek, or call 1-847-770-6600 to schedule a meeting with Mary.
What is mental capacity in a legal sense? Having the cognitive ability to enter a contract is a crucial legal principle. All parties entering into a contract must have the mental capability to do so. Otherwise, the agreement can be considered void and then canceled.
Mom is 78 years old, living alone after the death of Dad. She was recently diagnosed with the early stages of Alzheimer’s. Mom doesn’t have a will or powers of attorney for health care or property, and you have heard that these are important. You have also heard that if Mom lacks mental capacity, she can’t sign these crucial estate planning documents.
“Capacity” is not a one-size-fits-all concept. The answer depends upon what decisions Mom needs to make and what type of documents she needs to sign. For example, the legal standard for capacity is lower for executing a power of attorney for health care than for signing a contract or a deed.
If Mom lacks the capacity to sign a will, then any will she signs during her incapacity will be subject to legal challenge. For example, a contested estate matter could revolve around the issue of whether a person lacked the capacity to favor one child over another or to give her estate to her hairdresser.
If Mom lacks even the capacity to sign a power of attorney for health care, then you may have no option other than having her declared a disabled person and appointing a guardian to act on her behalf.
Let’s discuss how mental capacity can affect various legal decisions.
Every adult in Illinois is presumed to have the capacity to make their own health care decisions, assuming they are in a conscious state. A diagnosis of early Alzheimer’s will not necessarily overcome this presumption, but a diagnosis of advanced dementia or Alzheimer’s could.
The level of capacity required to execute a durable power of attorney has not been determined in Illinois. However, the standard of capacity for powers of attorney for health care would most likely be similar to those outlined above under “medical decisions.” In contrast, the standard for powers of attorney for property would most likely fall between “testamentary capacity” and “contracts and deeds.”
The standard for testamentary capacity is less exacting than the ability to transact ordinary business. Mom may not be able to balance her checkbook or pay her bills on time, but if she can meet the following standards, she is competent to make her will:
It is not necessary that the person actually knows these things. It is only necessary that she has the mental ability to know them.
Neither Illinois statutes nor Illinois case law clearly establish the level of capacity needed to execute a trust. The key is determining whether the trust in question is more like a will or a contract. An irrevocable trust (such as a special needs or life insurance trust) is more like a contract or deed than a will because it disposes of the person’s property immediately and forever.
A trust that delays making a gift to another person until after the client dies is more like a will and requires a level of capacity similar to that required to make one. An irrevocable trust requires a level of capacity similar to that of a contract, as discussed below.
The requirements to execute a contract or deed are the highest on the capacity spectrum. The person must have sufficient mind and memory to comprehend the nature and effect of her actions, exercise her own will, cope with her adversaries, and protect her interests.
Guardianship requires filing a petition with the court to have a guardian appointed to handle the day-to-day financial and/or health decisions of a disabled person who is not able to manage her affairs fully. Guardianship can be avoided if the incapacitated person has signed valid powers of attorney for health care and property. In addition, individuals who have been declared to be disabled may still have testamentary capacity that may be exercised with court approval.
If you have a family member whose capacity is diminishing, don’t delay taking action to get their affairs in order. Since capacity usually diminishes over time, it is essential to take care of these issues as early as possible before capacity is lost. Have a capacity assessment made by a qualified physician, preferably a geriatric psychiatrist or geriatrician, in the case of an elderly person.
If you need help handling a loved one’s affairs or putting estate planning documents in place,
contact Matlin Law Group at 1-847-770-6600 to schedule an appointment today.
While many parents are covering dependent insurance of their adult children until the age of 26, many of these parents are unaware that they have no access to that adult child’s medical records and/or no one has been appointed agent under power of attorney for healthcare for the adult child.
Imagine: Your daughter is in college, a thousand miles away. You pray that she is safe in her new environment, but if she is hurt you can find yourself in a nightmare world. You get a call from a hospital: “She’s here, in stable condition.”
You ask, “What happened? What’s happening?”
The worker at the other end of the phone may feel legally restricted in what information she can give you without conflicting with HIPAA regulations, so you receive no clear response and are denied basic information. She believes that she is honoring your daughter’s federal right to privacy under HIPAA and minimizing her potential liability; but her “take it up with our legal department” response leaves you in a lurch.
HIPAA (Health Information Portability and Accountability Act) authorizations and Powers of Attorney for Health Care (POAHC) are examples of estate-planning tools that are valuable to people of all ages and means. Every competent person age 18 and over should have them. HIPAA authorizations allow access to your adult child’s health information to whomever your adult child chooses.
POAHCs provide for the appointment of an agent who can make the personal and medical decisions on your behalf of your adult child, should they become incapacitated. It is a type of “advance directive” that helps to avoid a guardianship over their person, keeping your family out of court, and provides a forum for your adult child to articulate end-of-life philosophies, addresses organ donation issues and disposition of remains.
Think of a HIPAA Authorization as your loved one’s answer to the voice at the medical emergency end of the phone saying, “Sorry, I’m not authorized to discuss her condition with you — if you have a problem with this, take it up with our lawyers.” The penalties for health workers (physicians, nurses, hospital administrators and others) who violate complex HIPAA privacy rules can include fines and jail time.
If you are a new or existing client and your adult child is on their way to college, please have them contact Matlin Law Group at 1-847-770-6600 to schedule an appointment to execute their health care power of attorney, HIPAA authorization, and Living Will.
At Matlin Law Group, we are committed to providing quality legal services to our clients, as well as building on our success and ensuring the longevity of our firm. Two talented attorneys recently joined our firm. We are pleased to introduce you to: Andrew M. Winegar and Talia M. Shambee.
Please contact Andrew or Talia to request a free estate planning consultation via Matlin Law Group’s website or feel free to give us a call at 1-847-770-6600.
We are pleased to announce that Attorney Ryan S. Smith and Attorney Jeffery Ramirez have become Partners at the firm! Both Ryan and Jeff have significant experience vigorously representing all parties in estate planning, estate administration as well as estate and trust litigation.
Please contact Ryan or Jeff via Matlin Law Group’s website or feel free to give us a call at 1-847-770-6600.
Do any sound familiar to you?
All of these reasons to delay are perfectly understandable—but that doesn’t make them any less dangerous or counterproductive. Keep in mind that doing nothing can make your worst fears come true. Whatever keeps you from properly planning your estate, the damage arising from your own inaction will inevitably be greater than doing nothing. Weigh the perils of delay against your fears and you might discover that doing your estate plan is easier not only in the long term, which is obvious, but also in the short term, because the whole subject can then be put behind you.
We can help you stop procrastinating. Give yourself peace of mind and a gift to your family. Please click here to request an estate planning consultation via Matlin Law Group’s website or feel free to give us a call at 1-847-770-6600.