Is an Attorney Absolutely Required for Estate Planning?

I received a new client application requesting information about how to set up a power of attorney and Will. The person who submitted the application said she was doing so on behalf of an uncle who was so ill and incapacitated that he could not sign anything. He had not previously executed a Will or any powers of attorney.

She wondered how to begin the process of setting up these documents and ended the note saying: “Is an attorney absolutely required?”

The question illustrates why my answer to that question is generally: Yes!

The writer was under the impression that she could initiate the preparation of a Will and powers of attorney on behalf of someone who is incapacitated.  That is not the case.

1. An important element bearing on the validity of a Will is testamentary capacity; that is, the testator must have sufficient mental capacity to understand:
   • The business in which he or she is engaged;
   • The effect of making a Will;
   • The nature and extent of his or her property;
   • The persons who are the natural object of the testator’s bounty (relatives);
   • The fact that the Will disposes of the testator’s assets;
   • And finally, how all these elements relate so as to form an orderly plan for the disposition of the testator’s property.
2. Additionally, an incompetent person does not have the requisite capacity required to sign power of attorney.
   • The mental capacity required to sign a durable power of attorney in Texas is contractual capacity, which requires that the principal understand the nature or consequences of his act and the business he is transacting at the moment he signs the power of attorney.
   • A medical power of attorney allows individuals to specify who will make medical decisions for them if they are incapacitated and can’t make them for themselves; however, once they are incapacitated, they can no longer grant a power of attorney.

The true value of a lawyer is the ability to advise a client on their unique problem drawing on their years of schooling and experience in their area of practice. Documents lawyers produce for their clients are simply a byproduct of that advice.

So yes. In most cases, an attorney is absolutely required for estate planning if you want to ensure that your wishes are followed, your family is protected, and your property is managed and distributed in the manner you choose.

The personalized advice of an attorney costs more than downloading documents and filling them out yourself. But the advice of an attorney can also prevent costly mistakes, some of which may not become evidence until after you become incapacitated or die; mistakes that may cost significantly more in the long run than the fee any attorney would have charged.