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Law Offices of Maria N. Jonsson, PC

Why a Trust Should Always Be Created Before Incapacity

There is no DO-OVER after Incapacity or Death

What happens after the creators of a Trust (a.k.a. the Settlors) approach a point in time when their doctor detects signs of dementia? How long is it before they could be facing testamentary incapacity? Where is the point in time beyond which they can no longer amend their trust?

As hard as the subject may be to broach with a parent, it is imperative that the advice of a trust attorney is sought before “the point of no return” is reached. Once a person is deemed incapacitated, it is too late to update an old trust, a deficient power of attorney, an improperly executed attempt of a “trust amendment,” or a Health Care Directive.

Conversely, when a trust creator is approaching a stage in life and cognitive fitness where changes to their trust can be questioned on account of testamentary capacity, it is imperative that a Geriatric Evaluation be obtained to confirm their testamentary capacity before the estate plan is amended.

In other words, the old adage, “He who waits for something good never waits too long,” is definitely not applicable when it comes to estate planning at the later stages of life. Waiting too long may be a steep price to pay, or worse, can result in a person’s inability to legally express their testamentary wishes, and will set the family up for contention and even court process.

Contact The Law Offices of Maria N. Jonsson, Trusts & Estates in Marina del Rey, on 475 Washington Boulevard. Contact Us to learn more.