I found this a year ago, in 2015, had my own doctor fill it out and sign it, put a copy in my estate plan, and gave a copy to my attorney. He said it couldn’t hurt but might help.
The “Medical Certificate of Capacity” establishes that an individual had full capacity as of a certain date. It prevents any attempt to claim that you were incapacitated at some unspecified time in the past, and therefore at risk of the court attempting to void your pre-need documents.
This form can be witnessed and updated yearly. The form can be downloaded by clicking on a link at the above website.
Thank you for your comment. As your estate attorney told you, the document couldn’t hurt and it might help in certain circumstances. The big issue is what happens on the death of a loved one that left a will but the disposition of assets in the will doesn’t please everyone.
If you have children or family members that are constantly squabbling, it won’t matter what was signed and when it was signed. These family members will still squabble, argue and cause trouble.
There are different family situations that can cause problems. The first is when a parent quitclaims a home to a child before the parent dies. In this situation, the other children are left out and don’t get any interest in the home.
Or a parent decides in his or her will to leave the home to only one child and excludes the others. Again, one child is favored at the expense of the others and the family members can argue for an extended period why the one was picked over the others.
Yes, the document you cite would show that the parent was competent at a certain point of time. But the child can still exercise undue influence on the parent. There may be other factors that could influence an otherwise sane parent to make a decision that he or she may otherwise not take.
Take, for example, a child who withholds visits from grandchildren, refrains from doing certain chores that a parent requires or is just plainly abusive to the parent. In each of these situations, the other siblings would argue that the parent didn’t make a rational and proper decision in disposing of his or her interest in a home.
We think the most important element is the element of trust. If the parent has a plan and wants to give his or her home to one child either during his or her life or by will, the parent should have a document in place to explain the reasoning for the disposition of the home. In the will, the parent can explain why he or she decided that the home should go to a certain person and why it shouldn’t go to the others.
When one child cares for a parent over an extended period of time, the parent may feel a desire to compensate that child for that care. When other children neglect or fail to care for a parent, the parent may feel that those children aren’t deserving of any wealth transfer. There are many reasons parents have for their decisions. The important thing is to document those decisions and explain them in a rational way so that the family members, and, if necessary, any future judge looking over the situation knows that the parent made a conscious decision that was out of that parent’s own free will.
Even then, the children may still squabble, but at least the parent has put something down on paper to explain his or her reasoning and the judge can use that as a basis for his or her decision.
We think a will would be the best document to use. Judges seem to give a will document quite a bit of weight. A will usually has several witnesses and is notarized. For this reason, judges tend to give quite a bit of deference to the document. So even if a parent gives the home to a child during death, it would be smart to indicate in the will that the parent chose to dispose of the home while he or she was alive and give it to one particular child over the others.
Thanks for your letter.
Ilyce Glink is the creator of an 18-part webinar + ebook series called “The Intentional Investor: How to be wildly successful in real estate” as well as the author of many books on real estate. She also hosts the “Real Estate Minute” on her YouTube channel. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them at ThinkGlink.com.