Ask the expert: estate planning and memory loss: what you need to know
My spouse is starting to forget things. When is it too late to get estate planning documents.
Expert Answer: What if the day comes when you or your spouse is no longer able to make decisions about your health, finances, or future? Whether due to illness, injury, or age, losing the ability to manage your affairs can happen unexpectedly. In estate planning, capacity is the key factor that determines whether you can create or update essential documents like a will or power of attorney. So, how do you know when it’s too late to act, and what happens if you miss your chance? Let’s explore why planning ahead is the best way to protect yourself and your loved ones.
What is capacity?
Capacity refers to the ability to understand and make decisions about your legal and financial matters. It’s not an all-or-nothing concept. To create a valid will, for example, a person must have a clear understanding of their assets, the objects of their affections, and to whom they would like to leave those assets. Similarly, to designate a power of attorney, a person must be able to comprehend the authority they’re giving to someone else to act on their behalf.
How do you know when capacity is an issue?
It’s not always easy to recognize when capacity starts to decline. Signs like forgetfulness, confusion, or unusual decision-making can be indicators. Medical conditions such as Alzheimer’s disease or dementia can impair capacity, but even with these conditions, a person might still be able to create estate planning documents if their capacity is assessed by a qualified professional.
Capacity can vary by decision. A person may still be able to make some decisions, like choosing a healthcare provider, while struggling with others, such as creating a will. This is why it’s important to assess capacity for each decision separately.
What happens if you miss the boat?
If a person loses capacity and hasn’t created key documents like a will or power of attorney, the consequences can be significant. Without a valid will, the state will decide how a person’s assets are distributed, which may not reflect their wishes. Additionally, without a power of attorney or healthcare directive, family members may need to go through a lengthy court process to have a guardian or conservator appointed to make decisions.
Act early to protect your wishes
The best way to ensure your wishes are honored is to plan early, and working with an experienced elder law and estate planning attorney will help ensure your documents are in place. This proactive approach provides peace of mind for you and your loved ones – do don’t wait, or else it may be too late.
For educational purposes only. This is not legal advice. Lisa Hostetler Brown is a Certified Elder Law Attorney certified by the National Elder Law Foundation. 10 Pinckney Colony Rd, Ste 400, Bluffton, SC 29909 | 843-757-5294 | HiltonHeadElderLaw.com
