What to Know about Wills and Mental Capacity

Category: Wills

What to Know about Wills and Mental Capacity

If your family has a history of Alzheimer’s or dementia, you know all too well that the end of a person’s life can sometimes be more heartbreaking than their actual death.

Many people put postmortem planning off until these last few years of their life, but when a loved one begins to lose the mental capabilities to make important legal and financial decisions, you might feel as if it is too late for them to communicate their last wishes properly.

We never know what life has in store for us. It is important to prepare both for the division of our estate after our death, as well as for what will happen to us if we become mentally incapable of making legal and financial decisions. In Florida, simple documents can be drawn up to give legal authority to our loved ones should we become incapacitated. Let’s explore those options.

Wills and Personal Representatives

We have written in previous posts about the ways that a will can include information about your last wishes.

In your will, you will also select a personal representative, or executor. Your personal representative will be able to make important decisions about your burial, funeral, and so on. However, personal representatives are not given any authority over your healthcare or financial decisions until after your death.

But all too often legal, financial, and healthcare decisions need to be made at the end of someone’s life, and the person is not mentally capable. That is where advanced directives come in – documents that dictate a person’s healthcare wishes and the parties that will implement these decisions if the person cannot do so on their own.

There are two types of advance directives that you should consider writing: a living will and a power of attorney.

 Hollywood FL WIlls Lawyers

Power of Attorney. If you begin to suffer from dementia or Alzheimer’s, it is important to know you can pass your legal and financial decisions on to someone who will be capable of holding that authority for years to come.

Power of attorney documents allow someone, at any time of their life as a mentally capable person, to choose an “Agent” or “Attorney in Fact” (usually a spouse or close relative) to make decisions on his or her behalf. The document is “durable,” meaning it will last through the time that a person is considered mentally incompetent. A power of attorney can be changed as long as the person who wrote the document (the “Principal”) is still mentally competent.

Living Will. Another document that you should consider writing is a living will, especially if you have very specific wishes about different healthcare procedures or decisions that may come up later in life.

A living will is similar to the wills that we traditionally think of, but they apply specifically to healthcare and legal matters that arise while you are still living.

If you include very general information in your living will, it is important to craft both documents. You can try to include decisions for every possible illness or healthcare situation that may impact you later in life, but life is very unpredictable. A power of attorney can give someone you trust and love is given the power to make decisions in any given circumstance. This means that it is extremely important to choose an attorney-in-fact that you deeply trust.

To explore more options for planning for the future, contact an estate planning attorney today.


About the Author:

Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.