Tag: capacity

Capacity to Make a Will: What You Need to Know

Posted May 22, 2022 by Law Office of Andrew Szocka

If your ailing relative wants to make his or her will, the concept of capacity could come into play. Capacity to make a will affects whether the will is valid when the relative’s estate is distributed. If the creator of the will did not have capacity when he or she signed it, the probate court may not enforce its terms.

What Is Testamentary Capacity?

Capacity to make a will (testamentary capacity) is defined as the “mental ability to know and remember who are the natural objects of [your] bounty, to comprehend the kind and character of [your] property, and to make disposition of the property according to some plan formed in [your] mind.” In other words, to make a will you need to understand which property you own and be able to plan out how to distribute the property to others.

How Do You Tell If Someone Does Not Have Capacity?

The probate court must assume that a person making a will has testamentary capacity, unless it is proved that he or she did not. Physical impairments alone usually do not make someone lose capacity. It is more likely that a mental impairment would make someone lose capacity. In other words, the inability to speak or move does not necessarily mean someone cannot make a valid will. But someone with a severe mental impairment such as advanced dementia might not have capacity.

In addition, the appointment of a guardian for someone may be evidence showing the person does not have capacity. But neither physical impairments nor having a guardian are conclusive evidence.

Why Does Testamentary Capacity Matter?

If the person making the will did not have capacity at or around the time it was signed, the probate court may invalidate the will. An interested person such as a relative must “contest” or fight the will in court. He or she has the burden of providing evidence that the testator did not have capacity.

When an interested person wins a will contest, the will in question is disregarded. The testator’s property might pass to relatives via intestate succession or an older will might be used instead. This could drastically affect how the estate is distributed.

Have questions about making your will? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Ill or in Poor Health? Why You Need an Estate Plan

Posted May 21, 2022 by Law Office of Andrew Szocka

If you are ill or in poor health, you need an estate plan as soon as possible. You might be surprised to learn that your decisions will not necessarily be honored by doctors or family members if you are sick in the hospital. Writing down those decisions and setting up a structure for carrying them out is the best way to protect your autonomy.

Capacity and Estate Planning

According to Illinois law, people making wills or signing contracts must have capacity to act. The capacity to make a will is the “mental ability to know and remember who are the natural objects of [one’s] bounty, to comprehend the kind and character of [one’s] property, and to make disposition of the property according to some plan formed in [one’s] mind.” The capacity to make contracts and other decisions is the ability to understand what is being agreed upon in the contract or decision.

You can lose legal capacity if you are unconscious, have a serious illness affecting your decision-making capacity, or have a guardian appointed for you. Once you lose testamentary capacity, you cannot make a legally binding will. To protect yourself, you should consider making a will as soon as you learn that you are seriously ill. You should learn more about other estate planning documents too.

Estate Planning Documents to Consider If You Are Ill

People in poor health should consider signing not just a will, but also powers of attorney and advance directives. These documents give other people permission to act on your behalf when important decisions need to be made. In some cases, the documents will no longer be effective if you lose capacity. But you can ask your lawyer to prepare versions that either outlast your incapacity or go into effect only if you become incapacitated.

You choose which decision-making powers to delegate to others. For example, you can appoint an agent to handle health care decisions if you are incapacitated, but maintain all financial powers yourself. Also, you can specify your end-of-life and life-sustaining treatment wishes in these documents. Contact a local attorney to learn more about making your estate plan.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Durable and Springing Powers of Attorney in Illinois

Posted May 20, 2022 by Law Office of Andrew Szocka

Durable and springing powers of attorney can assist you and your family in times of great need – when you cannot make decisions for yourself anymore. These two kinds of powers of attorney go into effect at different times, but both stay in place if you become incapacitated to act on your own behalf.

What Is a Durable Power of Attorney in Illinois?

A durable power of attorney goes into effect as soon as you sign it. It is a legally binding document that allows an agent that you choose to make decisions for you and in your place. Unlike a basic power of attorney, which is not effective if you are incapacitated, a durable power of attorney contains special language making it effective even if you become incapacitated. It also continues operating if you later regain your capacity.

Capacity in Illinois is a legal term referring to someone’s ability to make decisions for himself or herself. Whether someone is incapacitated depends on the circumstances of the specific situation at hand. Someone might have capacity in one area but not in another. For example, you might have the capacity to make health care decisions but be unable to handle your own finances. Powers of attorney can cover specific types of decisions, allowing the agent to act for you in certain financial matters, just for healthcare choices, or in some other area of your life.

What Is a Springing Power of Attorney in Illinois?

Unlike a durable power of attorney, a springing power of attorney only goes into effect once you lose capacity to make the types of decisions listed in the legal document. At that point, your agent must take over in making the decisions and acting in your place. In other words, the springing power of attorney “springs” into action to help you if you lack capacity.

Springing powers of attorney help people who want to retain control over all decision-making while they can. When it is time for an agent to step in, he or she can pay the bills, talk to the doctors, or keep the business’s doors open. Without a power of attorney, an incapacitated person might run into financial trouble, be unable to articulate which types of medical treatment he or she consents to receive, and have other day-to-day issues.

Either a springing or durable power of attorney, when properly prepared in advance, can greatly assist you in a time of need. Talk to a local Illinois lawyer to figure out which type is best for you.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.