Medicaid Planning for a Client with Questionable Capacity
When planning, we must consider the person’s ability to understand the strategy and execute new documents. The concept of capacity in Florida is a matter of degree. Here, the law holds that various actions require different amounts of capacity, depending upon the complexity of the action.
Florida also recognizes that people’s capacity can fluctuate from day to day and from hour to hour. Often a person with very poor cognitive capacity may have relatively lucid moments on any particular day. During one of those lucid moments, it is perfectly acceptable to execute a document under the law. Testamentary capacity is merely one’s ability to understand in general the nature and extent of property to be disposed of, their relation to those who would naturally claim substantial benefit from their will, and the practical effect of their will as executed. In re Coles’ Estate, 205 So. 2d 554 (Fla. 2d DCA 1968). In fact, there is a presumption of capacity, unless the testator has already been adjudicated incompetent.
The capacity to execute a Durable Power of Attorney means that the person must recognize that there may be occasions when they are not capable of handling financial matters. It means the person must understand in general terms the extent of their wealth. Notice the precise details are not important, but the general concept of where the person fits in the scale of wealth. The last requirement is that the individual knows their relatives, or others that they should consider to handle financial matters for them, and that they choose the person selected to carry out and understand the authority granted.
The capacity to execute a Designation of Health Care Surrogate is simply that the individual knows that there may be occasions when that individual is not able to make health care decisions for themselves. The person recognizes who one might think they would select to handle this responsibility, and that they choose a person who fits into that category.
Should capacity be lacking, the courts provide another viable avenue to accomplish Medicaid planning.
If you are interested in learning more, please contact Shalloway and Shalloway P.A.