Todd Ratner
At the turn of the 20th century, the average life expectancy was a mere 49 years, and dementia was a rare phenomenon. Today’s average life expectancy exceeds 77 years. As lifespans increase, estate-planning attorneys confront the growing challenge of representing older clients who may have started to suffer capacity-related health issues such as Alzheimer’s disease.
So how is mental capacity determined with regard to legal matters?
As a threshold, when a client initially meets with an attorney, the attorney must determine whether or not the client has the requisite mental capacity necessary to reasonably articulate his or her wishes concerning their legal affairs. Testamentary capacity is a legal term that refers to one’s ability to be of sound mind in reference to altering or creating estate-planning documents.
Unfortunately, legal testamentary capacity or competence is not a black-and-white determination.
In general, the requirements of testamentary capacity are fairly simple. The testator must meet only this minimal test at the moment the estate-planning documents are executed. Therefore, documents may be valid even if the testator is in the midst of delusion immediately prior to and subsequent to execution, as long as the testator possesses the requisite testamentary capacity at the moment of execution. So, even if the testator does not recall signing the document the day following execution, it does not invalidate the document if the testator understood it when he or she signed it.
The mere existence of the onset of dementia does not preclude the signing of estate-planning documents, provided that the necessary criteria for mental capacity are met. However, the drafting of, or revisions to, current estate-planning documents should be considered in the early stages of dementia.
The attorney’s duty to confirm a client’s testamentary capacity exists in every estate-planning matter, and confirmation is usually determined while conversing with the client.
The attorney should inquire further at the first sign that the client may not have testamentary capacity.
It is important to confirm that forgetfulness is not a sign of a larger capacity issue, because not every forgotten fact or misstatement results from incapacity.
Clients may exhibit varying degrees of lucidity depending upon factors such as time of day, location of the meeting, and the presence or absence of family members. Attorneys should attempt to schedule the appointment at a time and in a place in which the client is likely to be functioning at their highest level.
In order to curtail the potential of a contest, the attorney must determine if the testator has the requisite mental capacity. In the event that the testator has reduced mental capacity due to dementia, the attorney must be well-informed of the diagnostic steps and stages of the disease to determine testamentary capacity. Estate planners should include a standardized series of questions designed to confirm testamentary capacity in every estate-planning matter to ensure that they are fully focused on the question of capacity. These noninvasive questions provide probative evidence and also increase credibility to the attorney’s testimony in a subsequent litigation contesting the client’s capacity.
In the event that the client has been deemed to not have the requisite testamentary capacity to execute their estate- planning documents and does not have a health care proxy and/or a durable power of attorney, a guardianship and/or conservatorship may be necessary.
- Guardian: a person appointed by the probate and family court to handle the personal affairs of an ‘incapacitated person’
- Conservator: a person appointed by the court to manage the estate of a protected person
Petitioning the court for a guardian and/or conservator is a potentially costly, time-consuming, and public process that should be avoided if possible. As such, if your loved one has been diagnosed with dementia, they should immediately contact an experienced estate-planning attorney.
It is essential that the individual making decisions relative to their estate-planning considerations have the testamentary capacity to do so. Oftentimes, the determination is a joint effort by attorneys and medical personnel to confirm the capacity of a client. Attorneys must ensure that additional measures are undertaken, especially with those inflicted with the onset of dementia, to reduce the likelihood of a contest.