Proper execution of all estate planning documents requires
the person signing have sufficient mental "capacity" to recognize and
comprehend the implications of what they are doing. Most people speak of legal
"capacity" or "competence" has something people either have
or don’t have. But capacity can depend on many variables, including the
person's capabilities and the task at hand for which capacity is required.
When determining capacity to execute estate planning
documents, it is important to look at the client's abilities, which may change
from day to day (or even hour to hour), depending on their illness, fatigue and
the side-effects of medication. On the other hand, greater understanding is
required for some legal activities than for others. For instance, the legal capacity
required for entering into a contract is considerably higher than that required
for executing a will.
The standard definition of capacity for wills is:
Testamentary capacity requires the ability on the
part of the testator to understand and comprehend, in a general way, the nature
and situation of his property and his relations to those persons who would have
some claim to his assets. It requires freedom from delusion, or other
psychological conditions which might influence the ability to understand and
make decisions about the disposition of his or her property. And it requires the
ability at the time of execution of the will to comprehend the nature of the
act of making a will.
This is a relatively "low threshold,"
meaning that signing a will does not require a great deal of capacity. The fact
that the next day the testator does not remember signing the will and is not
sufficiently "with it" does not invalidate the will if he or she understood
at the time what he or she was signing.
The standard of capacity with respect to durable
powers of attorney varies from jurisdiction to jurisdiction. Some courts and attorneys
argue that this threshold can be quite low. The client may only need to know
that he trusts the attorney-in-fact to manage his financial affairs. Others
argue that since the attorney-in-fact generally has the right to enter into
contracts on behalf of the principal, the principal should have the capacity required
to enter into contracts as well.
As a practical matter, in assessing a client's capacity
to execute an estate planning document, attorneys must ask, "Is anyone
going to challenge this estate planning instrument?" If a client of
questionable capacity executes a will giving his or her estate to the spouse,
and then to the children if his or her spouse predeceases them, it's unlikely
to be challenged. However, if he or she executes a will giving their estate
entirely to one child with nothing passing to the other children, the attorney
must be more certain of being able to prove the client's capacity because there
is a greater likelihood of a challenge by one of the omitted children.
While the standards may seem clear, applying them to
a particular client may be difficult. The fact that a client does not know the current
year or the name of the current President may mean he or she does not have
capacity to enter into a contract, but does not necessarily mean that he or she
cannot execute a will or durable power of attorney. The determination mixes
medical, psychological and legal judgments. It must be made by the attorney (or
a judge, in the case of guardianship and conservatorship determinations) based
on information gleaned by the attorney in interactions with the client, from
other sources such as family members and social workers, and, if necessary,
from medical personnel. Doctors and psychiatrists cannot themselves make a
determination as to whether an individual has capacity to undertake a legal
commitment like signing a will. But they can provide a professional evaluation
of the person that will help an attorney make this decision and substantiate
the client’s capacity to execute estate planning documents.
Because of the potential complications when assessing
capacity and because you need to be certain that formal legal requirements are
followed, it is always advisable to retain an experienced estate planning
attorney when preparing and executing any estate planning documents.
No comments:
Post a Comment