Mental Incapacity and Estate Planning

The common issue of mental incapacity is one of the most important reasons for beginning the estate planning process early. While you may work hard at taking care of yourself, you do not know what the future has in store for you. Estate planning allows you to ensure that your assets are protected and distributed in the manner you choose in the event that you become incapacitated later on in life. The Commonwealth of Massachusetts will not recognize any legal documents drafted or signed by individuals who are mentally incapacitated. A will is one such legal document. Mental incapacitation can occur due to mental illness, coma, physical ailment, or the side effects of prescriptions. Generally speaking, mental incapacitation occurs when you are unable to fully understand the terms of the document that you are signing due to a temporary or permanent mental issue. Mental incapacitation centers around the issue of consent. An individual who is mentally incapacitated cannot consent because they are unable to process decisions. When someone becomes mentally incapacitated, the court can appoint individuals to make decisions for the mentally incapacitated person, such as a health care guardian or financial conservator. In probate, mental incapacity has a specific definition with regards to an individual’s ability to draft a will or otherwise conduct any estate planning. According to the Massachusetts Supreme Judicial Court in Goddard v. Dupree et al., 322 Mass. 247:

[T]estamentary capacity requires the ability on the part of the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance; freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property; and ability at the time of execution of an alleged will to comprehend the nature of the act of making a will.

Putting this in layman’s terms, a testator must have the mental capacity to understand the consequences of drafting a will and how he or she would like to distribute assets in a will. Unfortunately, mental capacity is a grey area in Massachusetts. While an individual who is in a coma cannot under any circumstances contemplate the nature of a will, an individual with a mental illness like bipolar disorder may. By only acknowledging wills of those who are mentally capable of drafting them, the Massachusetts probate courts seek to reduce the number of situations in which individuals use coercion or forgery to create wills for mentally incapacitated testators. If you suspect that someone coerced a loved one to draft a will while your loved one was mentally incapacitated, you need to consult with a qualified probate attorney immediately on how to prove mental incapacity and coercion in court. If you are in the process of drafting a will, it is important that you draft the will with the aid of a skilled probate attorney. The probate attorney can ensure that your will is valid and conforms with Massachusetts law. If you suffer from a disease such as dementia or mental illness that may raise mental capacity concerns, your attorney can assist you with creating a record of mental capacity should any disputes arise after your death. In addition, your attorney can help you create a comprehensive estate plan should you become incapacitated in the future. These additional documents include:

• Health Care Proxy: An agent appointed by you who can make treatment and medication decisions, pay medical bills, and obtain your records.

• Durable Power of Attorney: An agent appointed by you who can make financial decisions while you are mentally incapacitated.

• Advance Medical Directives: Instructions included in a living will that dictate what treatments are or are not permitted.

• Trusts: You can place some of your assets in a trust; develop a plan for how those funds are to be disbursed, to whom, and when; and appoint an individual to administer the trust.

If you or a loved one is or may shortly become mentally incapacitated, you need to consult with a probate attorney immediately on estate planning to avoid any issues regarding medical treatment, financial status or assets. The attorneys at The Sullivan Firm, P.C. have dedicated their careers to helping individuals preserve, protect and provide for their families’ futures. Call The Sullivan Firm, P.C. today at (978) 325-2721 to schedule a free exploratory meeting.

Troy Sullivan, Massachusetts Estate Planning Attorney

The Sullivan Firm, P.C. is a boutique probate and estate planning law firm serving the North Shore and Cape Ann of Massachusetts including Gloucester, Rockport, Manchester and Beverly. The firm concentrates on estate planning matters, including trusts, wills, healthcare proxies, life planning, probate, special needs trusts, and trust administration.