Wednesday, January 24, 2018

The Necessity of Capacity for POA’s and other Documents

August 12, 2009 by  
Filed under Estate Planning

Since Proviso Law Group focuses on preventive law strategies, I wanted to post an example of a problem that could have been avoided just by timing the solution.  One of the most important things to have before drafting any type of document is “Capacity”.  Legally, you must have the right state of mind when executing your documents… you have to know and understand what you are doing and the consequences of your actions.

This post is directly related to a recent inquiry I had by a son who wanted me to update his parents’ powers of attorney, advanced health care directives and set up a living trust for them.  To make a long story short, I could not help him because his parents no longer had the legal capacity to execute these documents.  He was taking care of both of his parents and I have no doubt these documents could have helped him immensely to manage their assets and make their health care decisions.  Because they waited too long, his parents’ health deteriorated and they could no longer make those decisions.  His only legal recourse is to petition the court for legal conservatorship… a very expensive and time consuming process.

This estate planning mistake could have been prevented by just simply drafting the documents sooner.

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