Thanks to all who attended our seminar “Recipe to Protect Your Elderly Parent” this week at the Bloomfield Township library. One of the topics that we discussed was getting powers of attorney for health care and financial matters, a will and possibly a trust in place before a parent no longer has legal capacity to sign.
Elders want to know who is responsible to care for them and who will manage their financial affairs. Adult children also want the parents to decide so that there is less conflict between siblings. Even so, some people put off making these decisions. It is always better for the elder to consult with an attorney when he/she is in good health and is under no pressure to act.
When an elderly parent is beginning to experience some early-stage dementia and does not have documents in place, family members wonder if it is too late to have the elder sign estate plan papers. Whether someone has legal capacity to sign has to be decided on a case-by-case basis by the attorney who speaks to the elder about his or her wishes. For example, to prove legal capacity in Michigan, the person signing the will must:
- Understand that a will disposes of property after death
- Know the nature and extent of his or her property
- Know the “natural objects” of bounty (able to identify family members)
- Understand the general nature and effect of signing will.
Through questioning, an attorney makes a professional assessment about whether the elder has capacity.
When it comes to creating a trust, the legal capacity threshold is even higher, because it is a contractual document and the person creating the trust (grantor) must have a higher degree of understanding. In Michigan, the grantor must be able to communicate, understand and appreciate his/her rights, duties and responsibilities under the trust, the probable consequences of his/her decision and the significant risks of, benefits of and reasonable alternatives to his/her decision.
If the elder does not designate who will act on his/her behalf and that elder no longer has legal capacity, family members may have to go to court to get authority to act as guardian and conservator for that person. This is especially the case when the elder’s spouse is deceased or unable to handle his/her affairs. When family members do not agree about whether the elder should stay in their home or go to assisted living, how monies should be spent, or many other issues, often times the conflict leads to an expensive battle in court. This is the last thing that an elder wants or needs in the last years of life.
As always, we are happy to help you sort out any question you may have about your parent’s legal capacity to sign or change powers of attorney, will or trust.