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Society of Trusts & Estate Practitioners (STEP) Presents: “Planning For (And Litigating) Capacity Issues”
October 17, 2017 @ 8:00 am - 10:00 amFree – $10
To register for this event, please contact the Society of Trusts and Estate Practitioners (STEP) Long Island via e-mail.
Private Client Services‘ Senior Client Advisor and STEP Long Island Co-Chair Mitchell S. Stein, TEP will be officiating the group’s forthcoming session entitled “Planning For (And Litigating) Capacity Issues”. As part of STEP Long Island‘s Breakfast Meeting series, Farrell Fritz’s Joseph La Ferlita (Partner) and Frank Santoro (Counsel) will explore the complexity and ambiguity of capacity issues from both estate planning and litigation perspectives.
This event will take place on Tuesday, October 17th at Farrell Fritz’s corporate headquarters in Uniondale, NY. The meeting will begin at 8:00am and is open to members and non-members of STEP (non-members will be charged a $10 fee). Breakfast will be provided to all in attendance.
About “Planning For (And Litigating) Capacity Issues”:
Inevitably, a professional who regularly provides estate planning guidance will face a client with questionable capacity or be involved in a case where incapacity is alleged. Unfortunately, case law provides examples of professionals either improperly closing their eyes to the obvious, or failing to employ strategies that might discourage or overcome unmeritorious claims of incapacity.
Another reality some professionals fail to appreciate is that a probate contest is not the only setting in which capacity issues are litigated; often, such litigation occurs while the client is still alive.
This lecture will explore the issue of capacity from both estate planning and litigation perspectives.
Before death, in guardianship proceedings, the issue of whether a person is incapacitated, as that term is statutorily defined, is a threshold issue. It is, generally, an inquiry into the person’s functional limitations, their effect on the person’s ability to manage his property and personal affairs, and whether the person can adequately understand the consequences of his limitations. The outcome of a commercial litigation can be greatly influenced by the issue of whether a party suffered from diminished capacity or a complete lack of capacity during relevant time periods.
Subsequent to death, the will contest will often feature a challenge to testamentary capacity, which involves a far different inquiry than that had in a guardianship proceeding. The will contest will also feature allegations and evidence of compromised, or diminished capacity, in an effort to prove susceptibility to undue influence. Gifts, joint accounts, and beneficiary designations can be challenged after death, as can trusts created by a decedent. Additionally, litigation subsequent to death features evidentiary rules and rules of procedure that are unique and sometimes surprising.
Understanding the law as it addresses a person’s capacity in different contexts can help trusted advisors properly serve their clients.
Mitchell S. Stein, TEP (Trust & Estates Practitioner) is a Senior Advisor in Private Client Services. As a wealth transfer and life insurance advisor, Mitchell helps sophisticated clientele plan, reach and exceed their financial objectives. He uses his 24 years of experience to craft customized, comprehensive plans that ensure and protect client assets. As part of this process, he reviews and dissects client documents with an unparalleled eye that uncovers risk, identifies anomalies and analyzes opportunities to safeguard and improve existing plans.