Sometimes, we put things off too long. Marcie’s grandmother, Hazel, had talked about writing a Will for years. She even tried handwriting one herself because she refused to hire an attorney. Marcie knew she should encourage her grandmother to finalize her estate plans, but she just never got around to it. Then Marcie noticed Hazel was becoming more forgetful. By the time Hazel saw an attorney, it was too late.
Mental capacity is defined as
“sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter.”
Valid Estate Planning Issues.
For a Will to be valid in Alabama (and most other states), the person signing the Will (the testator) must be “of sound mind.” This may also be called “testamentary capacity.” The testator must understand:
- that he or she is making a Will,
- what property makes up their estate, and
- that they are disposing of their estate assets through the Will.
Marcie took her grandmother Hazel to an attorney to prepare her Will. The attorney will pay attention to whether Hazel understands the three things mentioned above. If she does not, Hazel will not be able to prepare and sign a valid Alabama Will.
Another estate planning document is the durable power of attorney. Similar to the Will, the person executing the durable power of attorney must be able to understand his or her actions. Oddly enough, one of the main reasons for signing the durable power of attorney is because it remains effective in the face of the principal’s incapacity.
In Marcie’s situation, her grandmother no longer could understand the documents she was being asked to sign. Because she had no estate planning documents, and was unable to continue caring for herself, Marcie filed a petition to become Hazel’s guardian. When Hazel dies, unfortunately her family will probably have to settle her estate through probate.
Don’t Wait to Prepare Your Estate Plan.
Estate planning documents deal with important issues in a person’s life. Understanding what a legal document does is critical. Don’t wait until you are incompetent or incapacitated to get your plan in place.
Schedule a free consultation with the attorneys at Miller Estate and Elder Law Our attorneys know how to help people like you. Just give us a call at 256-251-2137 or use our Contact Form to set up an appointment. Serving clients in the greater Anniston area, including Birmingham, Talladega, and Gadsden.
