It’s always a challenge to make sure that a loved one (especially a loved one who looks like they might be failing in their capacities a little bit) to get some estate planning done for them in an appropriate way.
The thing that people have to realize is the estate plan belongs to – and my responsibility as an attorney is to – the person who’s making the plan.
Very often I’ll get called from family members who say, you know, “My mom needs a will,” or, “My dad needs a trust,” or whatever it happens to be, “and here’s what’s going to be in it.” And I immediately have to stop them and say, “No, I really can’t take that direction from you; I have to speak to your parent.”
And in most instances, the best way to have things happen is that the parent comes to my office by him-or-herself, not brought by the children. If there are multiple children especially and only one child brings them to the office, there’s going to be a chance that someone’s going to say, “Oh there was undue influence.” Especially if the plan ends up favoring that child that brought them to the office.
So it really is always best if the person can come by themselves. In some instances, people just show up. Or in spite of having being told that they should, you know, send the parent by themselves they bring the parent… with them. The first thing I always do is I excuse the children or the other parties in the waiting area and I go back and I talk to the parent (the person who I’m making the plan for) and make sure that I have a really good feeling that they know what it is that they’re doing, who they want to be the beneficiaries of their estate, and that they understand that my responsibility is to them.
If you had a situation though, where, you know, perhaps you’re an only child or you have a couple of children but the parent wants to make both the children equal beneficiaries and the children are just happy about that, but there’s a question about the parent’s capacity, I have to tell you that the bar for testamentary capacity is actually relatively low.
There’s a great case that says even if somebody has been inebriated for months, has been on drugs, has been hallucinating, but they have a moment of clarity, and in that moment of clarity they understand the extent of their estate, who their beneficiaries are, and what it is that they want to do with that estate, they can make an estate plan at that point. Now I take lots of notes in a situation like that because I know the questions may come up later. But as long as you have some ability to understand what you have and who you want it to go to, we can make a plan.
Sometimes people will worry about physical disabilities. I’ve had a number of clients who’ve come in and they could not sign their documents for themselves. That’s actually very easy to take care of. We have some special language that we put in and we have a notary affix their initials or their signature to the document, and it becomes just as binding as the document that they themselves would have signed, if they had that ability.
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The thing that people have to realize is the estate plan belongs to – and my responsibility as an attorney is to – the person who’s making the plan.
So if someone has physical incapacities, we can certainly deal with that. If they have some developing mental incapacity or dementia or something like that, we can still get around that. And when I say “get around,” I don’t mean to say that we’re trying to be devious, because I’ve had situations where I’ve told people, “I’m sorry we just can’t sign this document today, because I can tell that the principal here really doesn’t understand what’s going on.”
But if we can help them, we will.
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– David Pilcher is an experienced estate planning and probate attorney with Bogin, Munns & Munns, a full service law firm with offices in Orlando, Clermont, Kissimmee, St. Cloud, The Villages, Orange City, Titusville, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Pilcher welcomes questions and comments regarding the above and can be reached at dpilcher@boginmunns.com.
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