Lack of Mental Capacity: Gathering Evidence
It’s natural that as someone gets older or becomes ill, they may lack mental capacity to make a valid Florida estate plan. This can be a difficult truth to face. Some people do not realize it until after their loved one passes and the estate plan raises red flags.
When this happens, make sure to contact a Fort Myers lack of mental capacity lawyer as soon as you suspect there may be a problem. Gathering evidence for this kind of case usually takes the full amount of time allotted by law. In fact, depending on the nature of the estate, you may have as little as three weeks to bring your claim.
Often, mental illness or the natural decline in mental capacity that comes with age is a factor. This is not enough for Florida courts to declare that all or part of an estate plan is void, though. The standard is that the deceased was of sound mind when he or she created the estate plan.
Many people live with mental illness or the mental effects of old age and are still of sound mind. In fact, Florida assumes all testators or people who make estate plans are. It’s only when there is concern that someone may not be that a case arises and it is the responsibility of the person who brings the claim to prove otherwise.
Showing Lack of Mental Capacity in Florida
Once your loved one has passed, your lack of mental capacity lawyer needs to present records and testimony that show the quality of the deceased’s mind at the time he or she created a will, trust or other estate device.
To satisfy Florida’s sound-mind standard, a testator or person making a will or other estate plan must know what making an estate plan is, understand his or her property and assets, as well as the relationship of their heirs or people receiving the property, and appreciate the practical effect of the plan.
Records that indicate sound mind may include medical records of tests, interactions with medical professionals and behavior during time spent in nursing care or hospitals. Psychiatric and pharmaceutical records may also be used.
If you know of any eyewitnesses to the behavior of your loved one, tell your attorney right away. People who may be able to testify about mental capacity include friends, neighbors, caretakers or other service people who interacted with the individual.
Sometimes, your lawyer will hire expert witnesses. These professionals are qualified to state whether certain behavior or decision-making patterns meet certain objective standards of mental capacity. In combination with testimony and medical records, expert witnesses can be quite effective.
Speak openly with your lawyer about anyone who may be able to help your case. At Freidin & Inglis, we’re here to help.