Estate Documents: When is it Too Late?

I want to share a very sad situation I was recently involved in so that hopefully it won't happen to any other family.

I was approached by a gentleman seeking estate documents [Wills, Powers of Attorney ("POA") and Personal Directives ("PD")] for himself and his wife, who was hospitalized with a terminal condition. I took instructions, completed the documents and attended at the hospital so they could be signed.  However, when I spoke to the wife, I immediately realized we had a problem - she did not appear to have the legal capacity required to validly sign the documents.

Although the instructions the husband had given sounded perfectly reasonable and I had no reason to think that this wasn't what she wanted, I could not proceed with having the wife sign the documents.

What's required for a person to have the "legal capacity" will vary depending on the act to be performed. However, in general terms, in order to execute legally valid documents, you must have a certain level of competency. You must have the ability to understand the information relevant to making the decision and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

Unfortunately, mental competence can become an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. This is why it's critical that Wills and other estate documents be completed while you are in good health so that there are no questions as to your mental competence.

I felt bad for both parties but it emphasized how important it is to prepare such documents before it is too late.

Note to yourself: there's a good chance it will be "too late" to proceed with such documentation when you already have a terminal diagnosis.

This is especially so when you consider leaving assets in a Will to a beneficiary whom is challenged.

For more information on the standards required to execute valid estate documents, please follow the link.

Representation: Vulnerability Just Ahead?

The following is an excerpt from a recent email to a doctor explaining why Representation can be so crucial for higher-functioning individuals. Please pay particular attention to the last paragraph:

The legislation defines “capacity” as “the ability, with or without support, to

• understand information relevant to making a decision; and

• appreciate the reasonably foreseeable consequences of making or not making a decision including, for greater certainty, the reasonably foreseeable consequences of the decision to be made.

In my experience, it is often the second component that is the real sticking point. The simplest example is, perhaps, a child’s ball rolling across the road. Although the child can show his want/need to retrieve the ball at any cost, none of us would allow him to simply run into the road because we understand what the child cannot; namely, the very real risk (and potentially severe consequences) of being hit by a vehicle.

A more apropos example might be a challenged young adult meeting (and perhaps developing a form of relationship with) an individual in the community or elsewhere, who then asks our young adult to go somewhere or do something with them. Given that executive functioning deficits cut through every aspect of a person’s life, the issue becomes the young adult’s ability to think through the potential consequences of the decision he must now make. If, for example, the other individual is a stranger or you and I would see that what that person is proposing is illegal or potentially unwise or even dangerous, [unless a legal Representative has been appointed], no one would have the ability to intervene.

I see it much less as us imposing our value judgement as to what might constitute a “good" decision in the circumstances as recognizing that, whatever any one of us might ultimately decide, we at least have the ability to (if we choose) think forward as to potential consequences; whereas, adults in [this] situation simply do not (and likely will never) have this same ability.