(SB) - Let’s face it, we all have moments – sometimes days – where we question whether we’re “losing it.” We walk into the kitchen to grab something and forget what we went in there for in the first place. We get knee-deep into an argument with our teenager and after hearing them ramble for a few minutes about why they’re right and we’re wrong, we forget the wise, poetic words we had prepared to prove our point. As I write this, I’m recalling a moment last month where I was doing too many things at once and caught myself opening the fridge to put away our handheld vacuum cleaner. My youngest daughter got a kick out of watching that one!
However, while all of us have moments of forgetfulness or brain fog from time to time, some people will develop actual memory-related diseases such as dementia or Alzheimer’s. According to the Alzheimer’s Association, nearly 7 million Americans are living with Alzheimer’s disease. By 2050, this number is expected to rise to nearly 13 million Americans. The lifetime risk for Alzheimer’s at age forty-five is 1 in 5 for women and 1 in 10 for men. Alzheimer’s is a terrible disease, not only for the patient, but for the patient’s loved ones. In my career, I often see this in the realm of estate planning – or lack thereof.
In the State of Iowa, an adult person must be of “sound mind” to create a Last Will and Testament. This means the client must understand the following things: (1) the purpose and consequence of creating a Will; (2) the extent of his or her assets; (3) who his or her heirs are; and (4) the effect the Will has on his or her beneficiaries. Without being of sound mind, a person’s Last Will and Testament could easily be challenged for lack of mental capacity or being unduly influenced.
Sadly, ten years ago, Americans watched litigation ensue over the estate of Casey Kasem, beloved radio personality and voice of Shaggy Rogers in the well-known television series, “Scooby-Doo.” Despite being diagnosed with dementia, the American Top 40 radio host updated his Will to cut out his children in favor of his second wife. Litigation over Kasem’s Will began even before his death in 2014, and did not come to an end until a settlement was reached five years later. “Ruh-roh Raggy!,” as Kasem’s co-voice actor, Scooby-Doo, has exclaimed countless times.
As an estate planning attorney, it is important I take as many steps as possible to ensure my clients are of sound mind when signing their Wills. If someone other than the client calls to schedule the appointment, or if another person attends the initial meeting with the client, I generally take extra steps to ensure my client fully understands what he or she is signing. This may include things like requiring a written note from a physician if the client has been diagnosed with early memory issues, meeting with the client alone and having only members of my staff in the room to witness the client’s capacity, taking detailed notes of my interactions with the client, and sometimes interviewing beneficiaries and/or family if the client consents.
If I determine the person is not of sound mind, I cannot have the client sign a Last Will and Testament. Therefore, it is extremely important to create your estate planning documents when your mind is sharp. It doesn’t matter if a client has a high net worth like Kasem; the grief and stress on family left to question the mental capacity of their loved one when he signed his Last Will and Testament is immense no matter the dollar amount.
Lindsey Buchheit, Attorney, Buchheit Law, PLC, 633 1st Street, Suite A, P.O. Box 533, Sergeant Bluff, Iowa 51054, 712.823.1024 (office) 712.823.1025 (fax) Lindsey@Buchheitlaw.net. Visit us on the web: www.buchheitlaw.net.
The information contained above is for informational purposes only, and is not legal advice or a substitute for legal counsel. You should not act or rely upon this information.
