The Role of Incapacity in Wisconsin Estate Planning

1323680_question_mark sxchu username 7rains.jpgBecause Wisconsin residents are living longer, their chances for becoming incapacitated before they die have increased dramatically in recent years. Recognizing the potential for incapacitation as part of your Wisconsin estate plan is important in order to avoid unnecessary legal battles and guardianship proceedings (sometimes called “living probate”).

If the capacity of an individual was unclear at the time their estate plan was created, the documents may be questioned either by those who seek to inherit, or by a probate court. Luckily, demonstrating the capacity to create a will or other planning document in is fairly easy and according to now codified Wisconsin case law, anyone who objects to a decedent’s testamentary capacity must do so “by clear, convincing, and satisfactory evidence.” Still, it is important to create your estate plan before an unexpected illness or incapacitation arises.

Today, most estate plans in Wisconsin will include a revocable living trust, a will, a power of attorney for both healthcare and finances, and a living will. A revocable living trust, financial power of attorney, and health care power of attorney will normally name someone else to take over decision-making in the event of the creator’s incapacity. In this way, a comprehensive estate plan preemptively provides for any potential impairment. Additionally, a thorough estate plan may spare your loved ones from going through the process of living probate.

Living probate in Wisconsin is a guardianship proceeding for your financial and healthcare matters. As with the probate process, living probate has the potential to be both lengthy and costly. A living probate proceeding will involve attorneys, doctors, and any interested persons who may be affected by an appointed guardian’s decisions. Should a loved one object to the appointment of a would-be guardian, the process will often be extended while the court determines whether an incapacitated person’s best interests would be served by the appointment. Ultimately, all decisions in a living probate proceeding will rest with the court. By creating a thorough and complete estate plan, you have the ability to select who will make decisions on your behalf and avoid the potential for a living probate proceeding. For assistance with creating your comprehensive estate plan, you should contact a capable Wisconsin probate attorney.


Call Attorney Daniel J. Krause at (608) 268-5751 to schedule a free 30 minute consultation. Mr. Krause assists clients throughout Wisconsin with probate matters, health care documents, powers of attorney, trusts, wills, guardianships, and other estate related issues. To speak with an experienced Wisconsin estate planning lawyer, please do not hesitate to contact the Krause Law Offices LLC through our website.

More Blogs:

Taking Advantage of the Current Federal Gift-Tax Exemption as Part of Your Wisconsin Estate Plan, Wisconsin Probate & Estate Planning Lawyer Blog, July 5, 2012
Important Topics Parents Should Discuss With Their Adult Children, Wisconsin Probate & Estate Planning Lawyer Blog, July 2, 2012
Additional Resources:

Defining Incapacity in the Modern Estate Plan, by Randy Gardner, Leslie Daff, and Julie Welch, Journal of Financial Planning

Photo credit:
7rains, Stock.xchng