• The Gentreo Team

Handling an Estate When Someone Has Lost Capacity

Updated: Mar 17

When someone loses their mental capacity, they no longer have control over their estate. When creating an estate plan, for example preparing a Last Will and Testament, one of the critical components to the enforceability of the document is that the person signing it has full control over his or her mental faculties. One of the primary situations where Wills are contested involves individuals suffering from a mental disorder at the time he or she executed their Will.


Appointing a Guardian

What happens in situations where the person has already been deemed incompetent? The grim reality is that if an individual is deemed to be incompetent or has lost mental capacity before any estate planning is put into place, the court will appoint a guardian or other individual to administer the estate of the incapacitated individual. The incapacitated person no longer has control.



When the court appoints a guardian, that guardian treats the estate purely as a financial resource that needs to be used to pay for on-going medical care and to cover debts and funeral expenses. Individuals seeking to recover certain sentimental items have to go through the court and the guardian and request permission to obtain those items. This process is extremely time consuming and can be expensive.

Once the court retains control over an incapacitated person’s estate, people seeking relief or disbursement of any assets typically must follow standard legal protocol. This means filing applications or motions with the court and in many instances retaining an attorney.


Ways to Prevent a Court’s Control

The best way to prevent the state from controlling your estate is to make sure that you have a Durable Power of Attorney in place. Even if you don’t have a Will or Trust established, a durable or Lasting Power of Attorney will allow your designated individual to make decisions on your behalf. Typically, it is far better to set up your Last Will and Testament and any Power of Attorney earlier in your life rather than later as predicting the future is difficult to do.


Diminished Mental Capacity

In some instances, individuals who have Alzheimer’s can still maintain temporary control over their mental faculties. With Alzheimer’s being a progressive disease, there are times where an individual has the capability or capacity to execute a Will, Power of Attorney or another document. Of course, even someone with an early diagnosis of Alzheimer’s must be concerned with someone challenging the Will once he or she passes. Therefore, it is essential for anyone experiencing a disability affecting their cognitive functioning to make sure when executing a legal document, sufficient people are witnessing the signing as well as a notary public who can attest to that person’s legal capacity to execute such documents.


Prepare Your Estate Plan Early

It is always a difficult time when a loved one loses his or her mental capacity to execute legal documents. Family members are thrust into uncomfortable situations and find themselves at the mercy of the court and lengthily court procedures. It is always advisable to prepare estate planning documents as early in your life as possible and legal (typically over 18). If you or a loved one has been diagnosed with Alzheimer’s or a similar disorder that affects the mind, you should immediately take steps to finalize the appropriate legal documents including the Power of Attorney.

For more information, visit us at Gentreo.com. We can help you create an affordable and simple health and estate plan.

Gentreo is not a law firm or a substitute for a law firm, or attorney, or an attorney’s advice or recommendations.

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