Legal Capacity Consequences

January 22, 2023
Author:Tom Tuohy
Young male nurse holding hands of an elderly female patient in a wheelchair in a hospital

Legal Capacity  

The American Bar Association defines ‘legal capacity’ as “the ability to perform a task – or make a decision. State laws set out the standards of legal capacity for various tasks – consent to treatment, make a Will, Trust or Deed, and make a gift or contract.”

In Illinois, legal capacity depends on the circumstances:

  • Every adult is presumed to have the capacity to make health care decisions unless proven otherwise. An example that is often confused is that the diagnosis of Alzheimer’s or dementia will not necessarily prove a lack of legal capacity. However, a  diagnosis of advanced Alzheimers or dementia could likely prove that legal capacity is lacking.
  • Testamentary capacity: a person’s mental and, therefore, legal ability to make or change a Will or Trust estate plan.     While you must be over age 18 to enter into any legal contract, Will, Living Trust estate plan, or Power of Attorney, you must also:

◦ Understand the nature and extent of your property.

◦ Remember your relatives and descendants.

◦ Be able to articulate who should inherit your property.       

While most people wait too long to make a Trust or Will estate plan or essential Health Care and Financial Power of Attorney documents, often people believe a relative needs more legal capacity to do so than they currently have. However, that, too, is objective. A Will, like a contract, requires the highest level of capacity, that you are of sound mind and memory.

The Consequences of Lost Capacity

Last week I received a call from a grade school classmate. Two years ago, he asked for my advice regarding his mother, who was in her late 80s.

He said she wants her real estate to go equally to him and his three brothers. They all agreed that his two brothers, who live with his mother, would remain in the house, as both have lived there their entire life and have special needs.

I made it clear to him that he needed to act quickly to protect the house and his brother’s ability to live there at their mother’s death. His mother needed to make a Living Trust that protects her two sons’ interest in her estate in a Supplemental Needs Trust at her death, or they will lose their SSI and Medicare or be required to reimburse the government for benefits.

The family house would be sold, and 50% of the value would go to the government. And worse yet, his brothers would lose the only home they have known.

My old classmate was calling to update his mother’s Power of Attorney. He said he ‘dropped the ball’ on the Trust but needs the POA for the long-term care facility where his mother now lives with advanced dementia.

I don’t have to tell you the rest. It is too late, and the home is lost.

Don’t be my old classmate. Please don’t wait to do what you need and someday find out it’s too late. Get a Living Trust estate plan while you have the legal capacity and are still here.

Living Trusts

At the end of your life or incapacitation, they risk Probate if you have property, investments, or bank accounts in your name.

  • A Will = Probate. The rule is no one can legally sign your name. Therefore, at your death or incapacity, all assets in your name are subject to the complete Probate process, which averages 18 months and is costly.
  • Living Trust completely avoids Probate.
  • A Living Trust estate plan includes Health Care and Financial Power of Attorney documents and a Last Will and Testament for guardianship of minor children and to “pour over” any assets still in your name at your death out of Probate.
  • Your life insurance policies and deferred compensation accounts can name your Living Trust as beneficiary, subject to essential tax considerations.
Tom Tuohy
Tom Tuohy

Police Benefits Plan

For an expanded presentation of asset protection strategies, marketplace police discounts on products and services, and regular updates on strategies to protect what you have earned, visit and register with the Police Benefits Plan. Registration for police, retirees, and families is free.

Contact us today for further information or visit Police Benefits Plans now.

Tom Tuohy is the founder of Tuohy Law Offices and the Police Benefits Plan. He has been a police lawyer for over three decades. His father was a CPD detective, and his grandfather was the CPD Chief of Major Investigations. You can reach Tom at 312-559-8400 or in his Oakbrook Terrace offices.

Police Benefits Plan

312-559-8444
17W220 22nd Street  
Oakbrook Terrace, Illinois, 60181

The information being provided is strictly as a courtesy. When you link to any of these websites provided herein, Comprehensive Benefits of America, LLC/ and the Police Benefits Plan make no representation of the completeness or accuracy of information provided at these sites. CBA and PBP do not provide professional financial, investment, tax, or legal advice. You should seek certified financial planners, CPAs, and attorneys for advice relative to your personal needs. See complete Disclosures and the CBA Security and Privacy policies.