Trusts and mental capacity in Florida

Creating a trust is an important part of estate planning. A trust ensures that your property and other assets are properly left to the beneficiaries you name when you pass. In order to create a trust, you must be of sound mind. Here is a brief overview of trusts and mental capacity in Florida.

When the time comes to create a trust as part of your estate plan, you will need to meet four requirements: alertness, information processing, thought process and ability to modulate mood.

When it comes to alertness, the courts will look at whether or not the testator was alert or mindful of his or her surroundings when the trust was created. The court will examine whether or not the testator had the ability to discern the time, place and date of when the trust was created, as well as the ability to concentrate.

Information processing centers around short- and long-term memory. Was the testator able to recollect when the documents were created? Does the testator know what the documents are for and what wishes were outlined in them when created?

When looking at thought process, the courts will try to determine if the testator had any deficits that could have affected his or her thinking or beliefs when the trust was created. Deficits can include hallucinations, intrusive thoughts, disorganized thoughts, delusions and disorganized thinking.

The ability to modulate mood is another important factor when determining the validity of a trust. The courts will take a look at how the testator’s mood varies. Is it a recurring state of anger, euphoria, depression, panic, despair, hopelessness, helplessness, fear, anxiety, indifference or apathy?

Even if the person suffers from a mental condition or disorder, it does not mean he or she was unfit to create a trust. The court will need to examine a host of other factors to make this determination.

If you are ready to create a trust in Melbourne, Florida, contact our firm to discuss your situation. We can answer all of your questions and ensure that your wishes are properly documented.


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