Estate Planning and Incapacity

At Reinfeld & Cabrera P.A. we understand that many of our clients may have concerns when it comes to estate planning and incapacity. There are many things one needs to take into consideration when drawing up a will – the effects of incapacity should definitely be one of those considerations.

Incapacity is when a person reaches the point where they can no longer take care of themselves or handle their financial affairs. This can happen at any time to any person and causes may include things such as heart attacks, strokes, dementia or injuries from an accident. Incapacity becomes a big problem especially when your signature is needed – like to sell/refinance assets to pay for expenses or to withdraw savings. In some cases you may still be able to sign your name but other people might think that you are unable to make sound decisions.

While going through the estate planning process, many people may think that a will is all they need, but a will does not deal with incapacity. A will only goes into effect after a person has died. It is a common mistake to think that the executor of your will can automatically step in to take care of your affairs in the case of incapacity. This means that many people will lose control of their assets and end up under the court’s supervision even before they die because they have no legal document that covers them in case of incapacity. Family, friends or your executor cannot sign for anything for you and, regardless of you having a will or not, they will have to petition the court to declare incompetence and to appoint someone to act on your behalf.

So what actually happens when the court gets involved? Firstly, there will be a public hearing to determine your competency. This will mean that any records used in court and all proceedings will be open to the public. The proceeding can become very expensive as court costs, lawyers fees, examinations and testimonies from qualified physicians, bonds and auditor fees can add up quickly. Then if the court declares you incompetent you will lose most of your rights as a citizen and you and your family will lose control of your assets and finances. The court will appoint someone to handle your affairs for you – this person is not necessarily someone you know or even like and will most likely be a professional guardian who is a complete stranger. This process can be very time consuming because the court appointee has to keep detailed records, report all expenses to the court (who oversees all your financial affairs) and post bond.

It is important to keep all of this in mind when seeing a lawyer regarding estate planning. At Reinfeld & Cabrera, P.A. we do our best to make sure that our clients are covered for every possibility and that you always remain in control of your affairs.