Does the Client Have the Capacity to Sign Florida Estate Plan Documents? Wills and Powers of Attorney.

I am often faced with estate plan clients who display signs of lacking capacity to execute estate documents, including Florida Wills, Trusts and Powers of Attorney. Through my experience, I have a compiled list of indicators that I look for when determining if a client lacks capacity or is being Unduly Influenced.  Those indicators include:

• Gifts to persons (care givers, service providers, friends) who are not the natural objects of the client’s bounty;
• Gifts to anyone that are so large, given the size and nature of the client’s estate, as to threaten the client’s economic security;
• Loans, particularly if undocumented, to anyone; extra scrutiny required if to nonfamily members.;
• Actions by client’s fiduciary (representatives, trustee, other) that reflect poor judgment or conflict of interest;
• Existence of estate planning documents naming non-family members as fiduciaries or beneficiaries;
• Existence of joint accounts with non-family members;
• Evidence that client sign checks prepared by others;
• Bequest plans or other arrangements favoring one child, particularly if a caregiver;
• Evidence of physical harm;
• Evidence of excessive dependence on a child or other person, particularly if such other person is critical to the client’s independence     and/or ability to avoid a nursing home;
• Material inconsistency between client’s understanding of estate and its true value;
• Excessive fees charged by professionals (trustees, attorneys, financial advisors, stockbrokers, other);
• Unconscionable terms of loans or other financial arrangements.

This list is not all of the factors that I consider, but it is the foundation of my analysis. If you are interested in finding out more information about undue influence,I recommend that you contact an experienced estate plan lawyer.