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The Role of Incapacity in Estate Planning

Because people are living longer, their chances of incapacity before they die has increased dramatically in recent years. Recognizing the potential for incapacitation as part of your estate plan is important in order to avoid unnecessary legal battles and guardianship proceedings (sometimes called “living probate”).

If the capacity of an individual was unclear at the time their estate plan was created, the documents may be questioned either by those who seek to inherit or by a probate court. Luckily, demonstrating the capacity to create a will or other planning document in is fairly easy and according to now codified Wisconsin case law, anyone who objects to a decedent’s testamentary capacity must do so “by clear, convincing, and satisfactory evidence.” Still, it is important to create your estate plan before an unexpected illness or incapacitation arises.

Today, most estate plans will include a revocable living trust, a will, a power of attorney for both healthcare and finances, and a living will. A revocable living trust, financial power of attorney, and health care power of attorney will normally name someone else to take over the decision-making in the event of the creator’s incapacity. In this way, a comprehensive estate plan preemptively provides for any potential impairment. Additionally, a thorough estate plan may spare your loved ones from going through the process of living probate.

Living probate is a guardianship proceeding for your financial and healthcare matters. As with the probate process, living probate has the potential to be both lengthy and costly. A living probate proceeding will involve attorneys, doctors, and any interested persons who may be affected by an appointed guardian’s decisions. Should a loved one object to the appointment of a would-be guardian, the process will often be extended while the court determines whether an incapacitated person’s best interests would be served by the appointment. Ultimately, all decisions in a living probate proceeding will rest with the court. By creating a thorough and complete estate plan, you have the ability to select who will make decisions on your behalf and avoid the potential for a living probate proceeding. For assistance with creating your comprehensive estate plan, you should contact our capable probate attorneys.

At Krause Donovan Estate Law Partners, LLC, our attorneys assist clients with probate matters, health care documents, powers of attorney, trusts, wills, and other estate-related issues. To request a consultation with an experienced estate planning lawyer, contact us through our website.

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