Chronic Illness - What About Your Property?

According to the Center for Disease Control, over one-third of all Americans suffer from chronic illness. If you or someone you love is one of these Americans, you should know that chronic illness can impact an individual’s future financial and physical well-being. Cleveland estate planning attorney Bart Leonardi explains some of these challenges.

ENSURING YOU HAVE TESTAMENTARY CAPACITY AND PREVENTING WILL CHALLENGES

All wills require testamentary capacity to be valid. Testamentary capacity refers to whether a person understands both the nature of the will and the property distribution made in the will. If a person lacks testamentary capacity, the will cannot be admitted to probate, and the testator’s property will pass not according to the testator’s wishes, but rather according to Ohio’s default statute.

Individuals who suffer from chronic illness may face unique challenges in getting their wills admitted to probate because a chronic illness may affect their testamentary capacity. Even if it doesn’t, though, a displeased heir may use the chronic illness to challenge the will in court.

In order to protect the validity of your will, you should tell your witnesses that you understand the choices you have made in your will and that you understand that a will is used to dispose of your property after you die. If you are worried that your will may upset some of your heirs, you may also wish to obtain a record from your doctor that verifies that you had testamentary capacity on the date you signed the will.

CONSIDER FORMING A REVOCABLE TRUST

A revocable trust is an arrangement whereby an individual’s property is transferred to either the individual or another person as trustee, who hold the property for the benefit of one or more beneficiaries. While the trust changes legal ownership, there is very little impact on the individual’s ability to control the property because the individual can be the trustee of a trust for his own benefit—that is, a person can be both the trustee and the beneficiary of the same trust.

This form of property ownership is particularly helpful to sufferers of chronic illness because the trust document can allow other individuals to take over control of the trust—to become the trustee—if the individual is no longer capable of managing the trust. This new trustee, perhaps a spouse, child, or other relative, could then manage all of the trust assets for the benefit of the individual.

PREPARATION FOR FUTURE MEDICAL CARE

Because individuals who suffer from chronic illness are at an increased risk of becoming unable to make their own healthcare decisions, advance directives are essential to protect their autonomy. If you suffer from chronic illness, you should consider having both a durable power of attorney and a living will.

• A durable healthcare power of attorney basically transfers your right to give informed consent to medical treatments to someone else. The power becomes effective only when you are no longer able to make your own healthcare decisions, so having a durable healthcare power of attorney will not affect your ability to choose your medical treatment for as long as you are able to do so.

• You should also have a living will. A living will is a set of instructions about what medical options you would choose in various situations. It gives guidance to both your doctor and your power of attorney in the event you become unable to give informed consent.

Click for more information on advance directives.

Qualified Legal Assistance is Available

Cleveland estate planning attorney Bart Leonardi knows the effect that chronic illness can have on estate planning matters. Because each illness and person is different, we will work with you to create a specialized estate plan to protect your health and your property.

Talk to Cleveland estate planning lawyer Bart Leonardi to discuss your options.