Kapsak / Estes LLC

Life Testaments, or ethical wills, are a way to share our values, blessings, life's lessons, hopes and dreams for the future, love, and forgiveness with our family, friends, and community. Although these names frequently cause confusion, Life Testaments are simply writings intended to provide loved ones with more formal and tangible expressions of those values, guiding principles, and wishes than conversations that may be planned but never held. Life Testaments are not new. Their use may be found, for example, in both Hebrew Scriptures (Genesis 49) and Christian Scriptures (John 15-18) and may be transmitted orally or otherwise. If in written form, they are not considered legal documents in the sense that they do not convey wishes in the event of a terminal condition or irreversible coma as may be found in a Living Will; nor do they express wishes as to materials possessions as may be found in a Will or Revocable (Living) Trust. Rather, they are personal expressions of values at life's turning points, responses to challenging life situations and transitional life stages. These personal documents reflect the voice of the heart and are as unique as the person writing it. Life Testaments share some common themes: Preserving family history; conveying important personal/spiritual values and beliefs; bestowing hopes and blessings for future generations; relating life's lessons; expressing ones love, forgiving others, and asking for forgiveness. Couples and parents may use a Life Testament to help clearly understand each others values so to build a foundation of common values for the relationship and childrearing, as well as to launch adult children and enter into a new relationship phase; an opportunity to harvest life experiences, convert these experiences into wisdom, and allow for the fulfillment of the responsibility of passing this wisdom on to future generations. Each of us may use the Life Testament as a link to future generations, a legacy of values and beliefs for a time when we are gone. A Life Testament complements our estate plan will or trust, durable general and healthcare powers of attorney, living will. It is a living document, ever changeable, constantly evolving; a challenge to create, a relief to complete; a blessing to give.Editors Note: This article was submitted by Dan Kapsak of Kapsak Law Firm LLC. He may be reached at 303 651-9330 or by email dkapsak@kapsaklaw.com

One of the most disconcerting events in a persons life is when she or he cannot make decisions any longer or discovers others believe it to be the case. Questions of capacity can come up when we want to create a will or living trust, or when we wish to appoint agents under powers of attorney. Degrees of capacity will also be important considerations since we may be deemed incapable of managing our own finances and thus subject to a guardianship or conservatorship, but still capable of make dispositive documents such as a will or a trust. Capacity from a legal perspective will be different from a psychological perspective. The legal perspective focuses on the individuals ability to function intellectually, whether or not a person is susceptible to undue influence because of diminished capacity, or whether or not a persons decision is appropriate given the circumstances. The legal test for capacity required to create or amend a will; or to create, amend, revoke, add property to a revocable trust; or direct the actions of the trustee of a revocable trust;, is generally the same: We should understand: 1) the nature and extent of our property; 2) the persons who are the natural objects of our bounty, and 3) the disposition which we are making of our property. Additionally, we should be capable of 4) appreciating these elements in relation to each other, and 5) forming an orderly desire as to the disposition of our property. Thus, if we cannot meet any one of the criteria above, and/or if we are laboring under a insane delusional persistent belief in that which has no existence in fact, and which is adhered to against all evidence, and that delusion affects our decisions viz. our will or trust then we do not legally have the capacity to create a will or trust. These tests are not mutually exclusive, and a combination of the above factors may contribute to a conclusion that we are not able to create a valid will or trust. The test for capacity to appoint an agent under a power of attorney is generally considered to be whether or not we understand that we are contracting with someone to act and speak on our behalf.Editors Note: This article was submitted by Dan Kapsak of Kapsak Law Firm LLC. He may be reached at 303 651-9330 or by email dkapsak@kapsaklaw.com

Take a breath and think back to a loved one whom youve lost to death, or separation, or the general craziness of life.  What do you treasure about that person?  Not in terms of stuff, but in terms of the values, the joys, the intangibles that he or she may have shared with you?  How were those intangibles conveyed to you?  By a letter, conversation, gesture, or some tangible item?            Now, what would you hope to convey to your loved ones should they lose you?  How would you convey those wishes, dreams, hopes, values?            Life Testaments, or ethical wills, are ways to share our values, wishes, and those intangibles that have helped us through our lives.  Their use dates back to before the written word, and we see examples of Life Testaments in virtually all cultures and faith traditions (see, for example, Jacobs blessing in Genesis 49, or Jesus farewell discourses in John 13-17).We are all different when it comes to expressing ourselves, conveying our messages, sharing our hearts and souls.  As such, we are not limited to one form of expression when creating our Life Testaments; their beauty is that there is no set form or format that must be usedwe can use the written word (prose, or poetry such as Prayer for a Child by Rachel Field), music (for example, Dan Fogelbergs homage and message of love to his father in The Leader of the Band), media, or any combination of the aboveor something completely different. Their use is not limited to the time before deathwe can use them when we begin lives together, to help us understand our partners values; when a new child comes into the world, perhaps giving the new parents a users manual; or when life is in any sort of transition, to remind us and those we love of what has rooted us, grounded us, sustained us in our lives. When we find ourselves closing in on the outer edges of our lives, what better gift to our loved ones than to give voice to our lifes experiences and accomplishmentsand failures, through the recorded word, letters, recipes(!), and memorabilia all bound up in a scrapbook? The creation of Life Testaments should be an integral part of our estate plan, to be reviewed, revised, added to, as lifes circumstances change.Sit back and think: what would I want to say to my loved ones, if I had the opportunity?This article was submitted by Daniel P. Kapsak, JD, MDiv.  He is the principal of the Kapsak | Estes LLC of Longmont, Colorado, and may be reached at 303 651 9330; or by email at dkapsak@kapsakestes.com