Raleigh Estate Planning and Corporate Law Attorneys

Estates and Trusts

Are You Prepared For Mental Incapacity?

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A power of attorney enables you to select who it is that you would want to handle your affairs in the event of your incapacity, as opposed to having the court decide this for you.  There are two types of power of attorney in North Carolina, a Durable Power of Attorney and a Health-Care Power of Attorney.

Durable Power of Attorney

The primary purpose of a Durable Power of Attorney is to give another person the legal authority to handle your assets on your behalf during your lifetime.  Absent a Durable Power of Attorney, if you become legally incompetent to handle your property, the court would have to appoint someone to act on your behalf in that regard. That person is called a Guardian of the Estate.

Health Care Power of Attorney

The primary purpose of a Health Care Power of Attorney is to give another person the legal authority to make health care decisions for you if you cannot make or communicate your own health care decisions.  Absent a Health Care Power of Attorney, if you are not able to make or communicate your own health care decisions, the court would have to appoint someone to do this for you. That person is called a Guardian of the Person.

If the same individual serves as both Guardian of the Estate and Guardian of the Person, that person is called a General Guardian.

Naming an Attorney-in-Fact and a Health Care Agent before incapacity is a good idea. It can avoid the unpleasantness and expense associated with having to be declared in incompetent by a court, to have a Guardian of the Person and/or Estate appointed and for the Guardian of the Estate to have to file accountings with the Clerk of Court. It can also avoid unpleasant disputes among family members and maybe even others as to who should be appointed by the Court to act on your behalf.

Your Will May Not Be Legally Binding

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In the months after a death, procedures and deadlines are far from the minds of the family. However, a death in the family often leads to legal disputes over the deceased’s property. Hard economic times and the increased availability of internet legal forms have led more people to attempt to draft wills, trusts and powers of attorney without the assistance of a lawyer. As a result, will disputes or contests are on the rise.

Even if the deceased has left a will, disputes can arise as to the will’s validity. To be legally binding, a will must be, among other things, signed by the deceased (the testator) and two uninterested witnesses. In order for the will to be “self-proving” the testator and the witnesses must sign in front of a notary and the will must contain specific language regarding the signing by the testator and the witnesses. Also, the testator must have sufficient mental capacity. A testator must understand that a will is being made and how the will affects his or her property at death, what property the testator owns, and who the beneficiaries are (“the objects of his bounty”). If any of these elements is missing, a court can find the will invalid.

In addition, a will can be deemed invalid if it seems likely that the testator wished to do one thing, but a third person coerced or unduly influenced him or her to do something else. The coercion does not have to be physical, and usually is not. Rather, the typical case of undue influence involves a testator who is otherwise competent, but feeble, and a person in a position of trust—a relative, friend, or spiritual advisor—who takes advantage of the person’s frailty, convincing the testator to change his or her will.

Finally, even if a will is valid, the executor under the will has a duty to the testator’s creditor and beneficiaries under the will to administer the estate appropriately and in accordance with the law. If an executor abuses such power, or favors certain interests over others, then such executor may be personally liable for any harm done.

Whether you are the beneficiary under a will that is being challenged, or your loved one has left a questionable will, it is important that you seek the advice of a qualified Raleigh estate planning attorney. Most will challenges must be filed within three years after the will is probated, and even shorter deadlines must be observed in some cases. Similarly, if an agent under a power of attorney, an executor, or a trustee has acted improperly, the law imposes short deadlines for seeking relief.