The Role of Incapacity in Wisconsin Estate Planning

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Incapacity Considerations For Comprehensive Estate Planning

Recognizing the potential for incapacitation as part of your Wisconsin estate plan is important in order to avoid unnecessary legal battles and guardianship proceedings (sometimes called "living probate").

Because Wisconsin residents are living longer, their chances of becoming incapacitated before they die have increased dramatically in recent years. 

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 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.

Wills For an Incapacitated Person

Today, most estate plans in Wisconsin 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.

How to Avoid Living Probate in Wisconsin

Living probate in Wisconsin 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 with incapacitation in mind, you should contact a capable Wisconsin probate attorney.

Get Help With Your Estate Planning

The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of probate, wills, estate planning, and trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.

Contact our office by calling (608) 344-5491 to schedule a consultation or use our online contact form.

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