Navigating mental capacity issues in estate planning

As we grow older, our mental capacity for decision-making and ability to deal with change declines. Although we may notice when we are “slipping,” we might not know the extent to which this capacity has reduced.

Most people experience periods of life where they have the ability to make decisions, periods of being mentally or physically incapacitated, and finally, the time when they pass. Your estate plan should address all three time periods, but the middle stage is often not addressed as well as it should be.

Trusts contain standard clauses regarding wishes in the event of one’s passing, and most estate document pages are designated to the handling of assets after someone has passed. However, most people are likely to spend some amount of time incapacitated, so it is important to acknowledge this and prepare for it to happen.

There is typically requisite protocol contained in legal documents for power-of-attorney or successor trustees to take control. For a trustee to be removed, a doctor or judge (or combination) typically must examine the individual’s status and rule on their ability to make decisions. Mental incapacitation might not be as clear or visible as physical incapacitation. Doctors may also be reluctant to make the call of negative capacity, and one’s successors (often their children) are often averse to having their parent deemed incapacitated.

Aging is not an easy process, and it can be challenging to recognize our own impediments. Many estate plans do not give heirs clear direction on how and when to provide protection from problems and bad choices created by a mental slowdown.

Children often don’t want to take the reins from their parents and remove their independence. It is emotionally distressing and challenging, especially as it is an all-or-nothing decision. The default choice is to do nothing, but this often comes with negative consequences.

When you are ready to create and document a strategy for this, think about incapacity in stages instead of an all-or-nothing deal. Plan for times, for example, when you may need assistance with more complex financial issues but can still write checks to your church or favorite charity.

Consider determining which tasks should transfer to the successor trustees in incremental shifts of responsibility under which conditions as they may occur. Creating and clearly communicating this plan according to your wishes gives your caregivers emotional permission and clear guidance to do what is best for you.

For assistance with your estate planning documents, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.