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A person’s legal capacity has to do with wide ranges of ability and understanding when it comes to making decisions. Different levels of capacity satisfy different legal transactions and health care situations. Typically the lowest level of capacity is needed for making a will.
The requirements for a will are that the person making the will knows generally about his/her assets, finances and knows how he or she’d like to dispose and distribute those assets upon death, and the person must not be subject to undue influence. It is not uncommon for persons with some degree of mental impairment to be able to handle day-to-day transactions adequately and have a say in their medical care, but not have the capacity to enter into a complex legal transaction or be free from all oversight in health care matters.
The ability to make sound legal judgments may also be intermittent. Some people have days when they are alert and comprehend more, and some days when they are simply bewildered. Even times of day can make a difference. Many of us have joked about having some-timers disease, but for persons with mental illness, in the early and mid stages of Alzheimer’s or dementia, or medicated because of an illness like cancer, there may be a serious question of capacity to enter into contracts, direct estate plans and make informed decisions on living trusts, wills, financial powers of attorney and health care powers of attorney.
Because capacity can be fluid, it’s often difficult to determine when one is losing ground. Needless to say, an experienced attorney will take time with a matter having to do with legal capacity. Elder law and special needs attorneys are trained to spot capacity issues and often will further document the proceedings by affidavit of what transpired over several meetings. An attorney might videotape the meetings or ask for a medical history, a list of medications, and current doctor’s statement.
Attorneys also look for signs that a spouse, family member or anyone else is influencing the senior. In fact, rarely should anyone other than the client creating the will be in the meeting with the attorney at both the initial discussion and execution stages of estate planning, when competency might be questioned.
The bottom line? Exercising good judgment in a legal matter is always important. An experienced estate or elder law attorney can help make dealing with difficult subject matters like legal capacity as seamless as possible.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.
WRITTEN BY LINDA KNAPP
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