(813) 231-6036 · 4511 North Himes Avenue #200 · Tampa, FL 33614
David Toback, Attorney at Law
Call to Schedule a Consultation Handset 813.231.6036

Proving Competence to Alter Estate Documents May be More Difficult Than You Think

Planning

Doctors and medical providers are called to testify as expert witnesses in legal cases all the time. When they do, we often think of them being called to testify in injury cases, or medical malpractice cases. There may not be a readily apparent reason why an attorney that does probate or estate planning would need a doctor as an expert. But in fact, medical testimony can come into play in many estate and probate cases.

This is because of the ability of others—outsiders or family members—to challenge the validity of an estate document on the basis of the mental health or medical condition of the person making it. Those who are incapacitated, or too ill or sick physically or mentally to make rational decisions, may not be able to validly execute wills, powers of attorney and other estate documents.

Cognitive Function is a Difficult Issue

Making matters more difficult, there is no bright line as to when someone has capability to carry out their affairs and when someone does not. For example, you may think someone with Alzheimer’s disease could not alter a will. But that largely depends on what stage of the disease the person is in. Alzheimer’s disease is a gradual decline; it is not a switch that turns on one day and makes someone unable to manage their own affairs.

Putting aside disease, all of our cognitive functions decline as we get older. We often say someone has “dementia,” but that term has become routine to refer to people who have naturally lost some cognitive ability as the result of aging.

Add in the variable of medicines, some of which can impair functioning, and you can see why an expert witness may be needed to determine if someone who changed a will was capable of doing so.

Looking Beyond the Surface

Some people may appear to be too incompetent to make changes to estate documents when in fact they are competent. That person may understand what is being signed, appreciate the effects of what is being signed, and the motives behind it, but may not have the ability to explain the thinking process to others. Even though that person may not be able to clearly explain to others their thinking process, they are clearly competent to alter estate documents.

Compare that with someone else who may be able to explain very clearly why they are, for example, excluding a family member from a will. They explain it rationally and sound like they understanding it. But they may be incapacitated; just because someone can explain the reason why they are doing someone does not mean they have the ability to think rationally.

The moral of this story is that we can’t believe what we perceive when it comes to determining the competency of people with illness or disability. Experts will be needed to explain cognitive functioning and how aging and illness affect the normal decision-making process.

Make sure your estate documents are executed in a way that avoids any legal problems down the road. Contact Tampa estate and probate attorney David Toback to discuss your estate plans.

Contact Form Tab