By Beth Andersen
It is a bit awkward to tell a client they should get a doctor’s note as part of their estate plan. Maybe that is why I have had clients come into my office after struggling to use estate planning documents such as powers of attorney or wills simply because their prior attorney did not obtain a doctor’s note. In some cases, financial institutions rejected power of due to competence concerns. In other cases, family members claimed undue influence or lack of competence in preparing the documents.
In these cases, a doctor’s note obtained as part of the estate plan would have been helpful.
STANDARDS FOR COMPETENCE
Under the Colorado law, for example, a “testator” (the person doing their last will and testament) must be 18 or older and “of sound mind.” See C.R.S. 15-11-501, et seq. A person doing their living will or power of attorney must be a “competent” adult. C.R.S. 15-18-102, et seq. Colorado Medical Treatment Decision Act; C.R.S. 15-14-701, et. seq. (Uniform Powers of Attorney Act)
HOW A DOCTOR’S NOTE HELPS
A doctor’s note helps overcome objections about competence and influence. Better to raise an awkward issue than risk having the estate planning documents contested or even set aside. The note helps refute concerns about the planning party’s cognitive abilities and intentions. It is well worth it to take the time to get that important doctor’s note if it means the documents will be less likely to be attacked.
In addition, the note helps establish who should be contacted if competence issues are on the table or addressed in courts and pleadings. Fortunately, in my experience, the note itself is usually enough to satisfy everyone to accept the documents, thereby avoiding the need to have the medical professional testify in court or deposition.
PREVENTING MISUNDERSTANDINGS AND MISTRUST
A key benefit of an estate plan is to protect the surviving family from misunderstandings, hassles and confusion over what the deceased party intended and whether they knew what they were doing at the time, including whether they had the competence necessary to prepare the documents. When everyone understands that the party was competent, they often have an easier time accepting the documents as valid. They are less likely to go to court to sue to set the documents aside.
Having a doctor’s note documenting that the person was of sound mind at the time they signed their estate plan documents can actually prevent the family strife by making it clear the party drafting the documents was competent.
EASY TO OBTAIN
I have never seen a situation where the treating physician, physician’s assistant or licensed nurse practitioner, as the case may be, will not provide such a note. In fact, a baseline test of competence is being implemented as part of Medicare eligibility, so many doctors who serve the elderly now give the test as a matter of course. I have never been asked to provide a template for such notes. The medical professionals have their own idea of what they feel comfortable stating and, in my experience, prepare the note or letter on their own and in their own words.
SITUATIONS WHERE A DOCTOR’S NOTE IS ESPECIALLY IMPORTANT
The following are some situations where a doctor’s note makes sense and should be obtained as part of a good estate plan.
- THE ELDERLY: Once a person reaches a certain age, be it in their 80s, 90s or over 100, concerns arise as to whether they are sufficiently competent to sign estate planning documents. Most people in their 80s are completely competent, but will they be in 10 or 20 years? Better to err on the side of caution by getting the doctor’s note now. Make a record. This way, if a person begins to exhibit dementia or impairment later, their ability to sign the documents is well established.
- INJURY OR ILLNESS AFFECTING COGNITION: If someone suffers from a degenerative condition, brain tumor or traumatic brain injury, or other medical condition that arguably affects cognition, better to err on the side of caution and establish their capacity to sign their estate planning documents. If the issue arises later, the record is clearly established.
- DETRACTORS: Is there someone in the family or social network who opposes, or might likely oppose, the decisions made in a person’s estate plan? For example, in a second marriage, the new spouse, new spouse’s children, and any children from a prior marriage all have different interests. If this is a May/December marriage or whirlwind romance, people may be even more concerned.Never take it for granted that friends, relations and potential heirs will agree with the deceased person’s appointments and bequests. As an estate planning and probate attorney, I am surprised (shocked, actually) by the number of people who are frustrated and angered by estate plans. Combine these emotional and contentious issues with the other concerns like age and competence and you have a recipe for disaster.As stated by Johann Kaspar Lavater, “Say not you know another entirely till you have divided an inheritance with him.” Unfortunately, sad but true. On the other hand, a good plan including a doctor’s note can prevent the fights before they arise.
- WELLNESS CHECK: As mentioned, a baseline cognitive test is a Medicare protocol, so physicians may soon be performing this as a matter of course. Often the decline is slow and early indicators may even help slow the process. Be proactive and get the test at a next wellness check, or have your relative do so, in order to build the record. This is the easiest way to get the test before it is urgent. Especially if there is a degenerative diagnosis or someone is aging, it makes sense to do this routinely even if the doctor does not suggest it.
- CONCERNING BEHAVIORS: Sometimes, your gut tells you something is off in the behavior of a loved one or even yourself. Denial will kick in to prevent you from taking action. Do it anyway. I have seen people NOT take action and then it is too late – a person is spending tens of thousands on a relative, friend, neighbor, housekeeper, so-called girlfriend or boyfriend, scam, gambling, home shopping and even video games. Now the money is gone and cannot be retrieved. Just because someone joins in jokes and conversations, lives alone, socializes, dates, and reassures everyone they are “just fine” does not mean they are competent. Unusual behaviors such forgetfulness beyond the norm, impulsivity and extreme personality changes can be signs of cognitive decline. Put protections ins place BEFORE the impairments cost the family thousands of dollars.A warning about denial: Denial and minimizing by the impaired person and the entire family is to be expected. Avoiding a diagnosis and ignoring the signs does not protect anyone. In fact, ignoring the decline, making excuses and procrastinating could even make things worse. Failing to involve medical professionals means failing to look into treatments that could prevent or slow decline. At least, a doctor’s note establishes a baseline and allows the estate plan to be prepared before it is too late. At most, it opens the door to treatments that help the impaired person prolong the joy of mindful, cognizant living.
- HIGH-VALUE ASSETS: The more money involved in an estate, the higher the stakes. In the famous words of Jonathan Lyndale Kirk, Christopher George Latore Wallace and Sean Combs, “Mo Money Mo Problems.” Someone who would never hire an attorney to contest an estate plan involving thousands of dollars may well hire an attorney to contest an estate plan involving hundreds of thousands or millions of dollars. The bigger the estate, the greater the risk and the more critical it is to get protections in place.Recently, I heard Dave Ramsey state that large sums of money bring the extended family into the picture, seeking some for themselves. I have found the same thing. The more money, the more people who think they have a claim to it. All the more reason to protect the estate plan with every precaution, including a doctor’s note.
- WHEN IN DOUBT: If the point was not made already, get that note! When in doubt, err on the side of caution. Better safe than sorry. As stated by Ralph Waldo Emerson: “When it comes to divide an estate, the politest men quarrel.”Be prepared, minimize those quarrels, and make that estate plan airtight with a doctor’s note. Nothing resolves a dispute like a clear-cut answer. A doctor’s note, fortunately, is such an answer and, ideally, a step toward family peace.To get started on a strong estate plan customized for your specific situation, contact Andersen Law PC for your free consult.