Blog Post: When Mental Decline Derails Your Estate Plan

Wills and trust attorneys can tell you that there is little as frustrating (and potentially devastating) as someone who waits until it’s “too late” to start the estate planning process. Mental decline is a common part of aging, and it is an unfortunate fact that when this decline starts to advance, it can become much more difficult to have your wishes followed.

There are multiple reasons that this happens, and while your estate planning attorney will work within all applicable local and state laws, there may be some limitations caused by any real or suspected impairment. Here are 3 common scenarios where mental decline can tie your lawyer’s hands and easily derail your estate plan:

Confusion

One of the obvious reasons not to put estate planning off until after the onset of a mental decline is that you simply might not be able to make the choices you would have truly wanted. Forgetfulness, irritability and other symptoms of memory loss can all get in the way. It is easy to overlook someone, to forget about an account, or even to have unclear feelings and motivations come into play.

Resentment

Even if you are able to lay out your decisions just as you would like them, that doesn’t mean that others will be happy or accepting of them. If a family member feels that he or she has been slighted, it’s not uncommon for him or her to contest your decisions, claiming that you were not thinking clearly due to mental decline. These types of claims can derail your entire estate plan and cost the estate and other heirs a lot of time and money.

Asset Protection

Another very important reason to work with an estate planning lawyer as early as possible is to ensure your assets stay protected should your illness progress. A lawyer will have insight into how best to create appropriate trusts that can protect your assets should you later need to move to a nursing home or other assisted living facility. 

How to Get Started

Your estate planning attorney will be able to help you best to outline your wishes and protect your assets. Finding a skilled lawyer with the right expertise should be one of your first steps. Next, identify your assets, both those things that have monetary value, and those that have sentimental value. You’ll want to determine who should inherit them. This can extend to everything from family jewelry to insurance policies and bank accounts.

In addition to wills and trusts, estate planning should also include considerations for your medical care and financial well-being in the future. You will want to name powers of attorney for your financial and medical decisions. Your estate planning attorney will help you get the right documentation in place to protect your assets and your wishes before it’s “too late.”

Steven Greenwood, Esq.