According to a 2016 study by Oregon State University and Portland State University, the average age of farmers and ranchers is now 60. An estimated 10 million acres of farmland will change ownership over the next 20 years, making farm succession and estate planning that much more critical.
The Salem, Oregon Capital Press asks in its article, “Mental competence a key factor in estate planning, experts say,” what happens when the farm or ranch owner is no longer mentally capable of making those decisions?
Mental competency impacts many people. Statistics show that 38% of those 85 or older have dementia or some type of cognitive impairment. However, attorneys must start with the assumption that a client is competent or that they have legal capacity to sign a document. Signing a will or a trust requires the most basic level of competency. However, this can lead to pressures, like undue influence, which could invalidate the agreement.
Disability planning is important to any estate plan. In some instances, a court-appointed guardian or conservator may be required to help manage finances. The objective is to protect the individual and her assets for future generations. It’s an expression of love for the family, when estate planning is completed.
Doctors distinguish between normal aging, mild impairment, and more serious forms of dementia. As far as decision-making, there’s a difference between mental capacity and competency. Competency is a purely legal term defined by the courts; capacity is related to a specific decision, specific action and specific context. A person may have the capacity to make some decisions but not others. That capacity may also change over time.
Financial capacity is the ability to manage money and assets, consistent with an individual’s values and self-interest. It’s frequently the first thing to go, which can mean the onset of dementia. A doctor can test for impairments, educate patients and families about their options and refer them to medical specialists.
Because someone is physically disabled or has a different set of values, it doesn’t mean they aren’t mentally capable of handling their estate plans. Don’t mistake normal aging with having a medical issue. Qualified professionals can evaluate a person’s basic brain functions to determine if they lack capacity. At that point, legal representation may be required in estate planning.
Remember, there’s no one-size-fits-all approach to estate plans, especially for farms and ranches. Every farm has a different plan. Work with an experienced estate planning attorney to be certain to put special guidelines in the document about the farm and what’s supposed to happen to it.
Reference: Capital Press (Salem OR) (June 4, 2018) “Mental competence a key factor in estate planning, experts say”