August 3, 2009

Guarding Against Mental Incapacity

curtNash Nash Bean & Ford are members of the American Academy of Estate Planning Attorneys and the National Association of Elder Law Attorneys.

By Curt Ford
Nash Nash Bean & Ford

As we age, one of our most deeply held concerns is that we may begin to lose our mental alertness. We can try to stave off mental
decline by doing crossword puzzles and other brain building games that help maintain alertness. But, like physical decline, the loss of mental acuity may not be entirely within our control. However, we can lessen the consequences of that decline through preparation.

If and when you are no longer able to handle your financial affairs, someone must step in to make decisions for you. If you have not planned, your family would have to go to court and have a judge decide on your capacity to make your own decisions. The judge would then appoint someone to make those decisions for you, someone you may not even like or trust. The competency hearing, sometimes called a living probate or guardianship proceeding, is a public process where your friends and neighbors can learn why your family thinks you should not be making decisions for yourself.

There is a better way. You can use a Revocable Living Trust, Powers of Attorney for Property and Advance Health Care Directives. The assets placed in the Trust are managed by you while you are able to do so. When you are no longer able, the person whom you chose and trust will manage the assets of the Trust for your benefit. You can name the same person or someone different for health decisions. You can even set the standard as to when you will be considered to lack capacity. Typically, it is when two physicians make the determination that you are no longer able to manage your own affairs or a panel of trusted persons you select in advance makes the determination of your competency.

Having a trusted friend or family member as your eventual decisionmaker reduces the chance that others will go to court to seek an incapacity determination. After all, they will know that they will not get control of your assets even if they prevail in the embarrassing hearing.

Estate planning is planning for your life, as well as your death. An experienced estate planning attorney can help you structure a plan that cares for you and your family in the event of your mental incapacity.

Nash Nash Bean & Ford are members of the American Academy of Estate Planning Attorneys and the National Academy of Elder Law Attorneys. To receive a copy of our most recent newsletter “Your Estate Matters” or for a free consultation on Estate or Long Term Care Planning, call 309-944-2188, 309-762-9368 or 1-800-644-5345. You may also contact our firm by email at or visit our web site at

The firm devotes it practice primarily in the areas of estate, business and tax planning and related areas of the law, as well as elder law and trust administration and probate. We offer guidance and advice to our clients in every area of estate planning.

This column is designed for general information purposes only, and is not intended, nor should be construed or relied upon, as legal advice. Please consult your attorney if specific legal information is desired.

Leave a reply

* means field is required.