Can an Incapacitated Person Make a Will?

For a legally valid will, you must have the required mental capacity and testamentary intent. Testamentary intent is required to ensure that the deceased intended for the will to become binding upon death. Mental capacity is required to guarantee your understanding of the consequences of making the will. While mental capacity is assumed, this presumption may be rebutted if it is shown that an individual could not recall (1) the property being devised, (2) how the property is being disposed of, and (3) who the property is being transferred to.[1]

How Power of Attorney Works

To avoid having the court appoint someone on your behalf, it would be useful to create a power of attorney, which authorizes a person to act on behalf of yourself in the event of incapacity. A power of attorney can be used for financial, business, or medical purposes. Typically, powers of attorney are durable, meaning they last during the person's incapacity, and are generally effective immediately.[2]

What is a power of attorney agent?

The person authorized to act on your behalf is something called an “agent” which differs from that of a conservator or a guardian.[3] An agent is someone that you directly appoint to handle your affairs in the event of incapacity; however, if you fail to thoroughly address all issues associated with incapacity, a conservator is appointed by the court.

What is the difference between an agent and a conservator?

The main differences between agents and conservators are, as follows:

(1) It takes a court action to begin and end a conservatorship.

(2) Conservators are under the court’s supervision, but agents are usually not.

(3) Conservators are appointed only at the point of incapacity, but powers of attorney can only be established prior to incapacity.

(4) Conservatorships are generally rare, while estate planners routinely include powers of attorney.

How Guardianship Works

While agents and conservators are appointed to handle the affairs of individuals in the event of incapacity, guardianship gives another person control over the day-to-day decisions of a minor or incapacitated person. Typically, a guardian is appointed either (1) by the parent of an unmarried incapacitated person or (2) by the spouse of a married incapacitated person.[4]

Even though the idea of incapacity and the lack of controlling your own affairs is a topic most individuals would like to avoid, it is in every person's best interest that they appoint an agent who may act on their behalf if they can no longer do so. Probate lawyer and estate planning attorney Derek Chen helps clients determine what they need and what specific provisions best suit their specific needs.

[1] Fletcher v. DeLoach, 360 So. 2d 316, 318 (Ala. 1978). [2] Ala. Code § 26-2A-148 [3] Ala. Code § 26-1A-102(1) [4] Ala Code § 26-2A-100