Posted By Larry Tolchinsky on August 12, 2014
Florida is a wonderful place to spend your retirement. It’s no surprise that so many people come here to spend their golden years, and here in the Miami and Broward County areas we see lots of seniors who are enjoying an active and full life here in the Sunshine State.
Florida probate lawyers help seniors and elders with their estate planning questions. Some of these queries are quick questions about how Florida law impacts existing estate plans that have been prepared in other states. Some of the questions relate to estate plan basics, like a Power of Attorney, Health Care Surrogate or a Last Will and Testament.
These are savvy and wise people who are seeking to control how their property is going to be distributed after their passing. It’s smart to plan ahead, and Florida probate lawyers are happy to help.
However, there are times when things aren’t so simple and smooth.
What is Diminished Capacity?
Under Florida law (Florida Statute 732.501), you must have a “sound mind” when you make a will or other estate plan document (i.e Trust or Power of Attorney). This is called “testamentary capacity,” and it means that you have the mental ability to understand what property you own or control as well as who are the people to inherit your stuff (”the natural objects of your bounty”). You have to be able to understand what the Will will do, from a practical standpoint, at the time that you sign (”execute”) the will documents. See, In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953).
In Florida, it’s assumed that a person has testamentary capacity when they sign their Will. That capacity can be fleeting; even someone with established mental illness can have capacity to sign a will if they understood what they were doing at the time they made and signed it.
Diminished capacity is something to be shown by someone challenging the Will. If it is shown, then the will isn’t recognized as being legally valid.
Diminished Capacity in the Probate Lawyer’s Office
Since the capacity of the person is critical at the time that their Last Will and Testament is signed, then it’s important that their estate plan and probate lawyer confirm that they have testamentary capacity when their Will is executed.
How can a probate lawyer do that — we’re not doctors or psychologists, right? Right. However, probate lawyers do have established legal standards they use in situations where diminished capacity may be a concern.
As a Florida probate lawyer, anytime someone wants to have a Last Will and Testament, Durable Power of Attorney, or other critical estate planning documents created or amended (changed), then we must confirm that this client has capacity to take this step. This is true for new clients as well as people we’ve known for years.
Why? It is the right thing to do. It’s not meant to be insulting or presumptuous; it’s for the protection of the client now and for the protection that their wishes are carrying out later, as well.
Florida Probate Attorney and Diminished Capacity
First, probate lawyers take the common sense steps. We observe the client for signs of diminished capacity, protecting them now from capacity challenges to their Will in the future.
Does the client act reasonably: do they know what they own, for example? Are there reasons why they may need special communications but they do understand, given special help? Older clients may have hearing loss, for instance. Their infirmities may mean they are more alert in the mornings than the evenings. Certain pain medications may be impacting their level of alertness and a conference with their physician can be vital.
If the lawyer is confident of capacity, then the finalization of documents proceeds at this point.
If the lawyer is still concerned about protecting his client and their wishes, he can undertake further steps including:
1. Lawyers can look to things like the Handbook published jointly by the American Bar Association and the American Psychological Association, entitled “Assessment of Older Adults With Diminished Capacity.” (Read it online here.)
2. We can also use the ABA Model Rule 1.14 as guidance here. It states:
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
3. There are times when a doctor’s opinion may be helpful. Here, the doctor’s written evaluation at the time that the Last Will and Testament is signed can be powerful evidence of capacity in a will contest down the road.
For Seniors, Protecting Against a Diminished Capacity Challenge Is Important
It is important for the Florida Probate Lawyer to establish capacity at the time that a Will is signed. However, being elderly or having some memory loss doesn’t make a senior citizen legally incapable of executing a valid will (or changing one).
If you are wanting to draft or amend your Last Will and Testament in Florida, and you have concerns that your decisions not be challenged later, then having a Florida probate attorney to help you with your estate planning can be critical to having your wishes honored.