03/29/2017










How Does Capacity Affect Elder Law Cases?

elderly man and younger manCapacity is a very difficult term in the elder law section of the statute. While it is clear what makes a person capable of making decisions, that definition does not always play out as smoothly in real life. For example, people can seem to be capable of making decisions, but later it is discovered that they suffered from diminished capacity. When this happens, estate plans can become contested, and decisions reversed – whether the individual intended for that to happen or not.

What is Diminished Capacity?

Diminished capacity is a hot topic for contested estate plans. And, defining it depends on the circumstances at hand. The definition can also vary depending on what state you live in and what the statute says. When drafting an estate plan, your attorney will have to ensure that the plan and your capacity meet all state statutes – otherwise, your will could be contested.

To make a valid will, the individual who is making the will (known as the testator), must have the ability to understand several things, including:

  1. The nature and extent of the property that is owned.
  2. The natural objects that are within ownership.
  3. The decisions that are being made in the will.
  4. The ability to help connect the dots to create a rational estate plan.

A person doesn’t need to be capable of making day-to-day business transactions and decisions after the will goes into effect, but he or she must have the capacity at the time when the will is drafted and signed.

The Various Levels of Diminished Capacity

There are three facets of diminished capacity, and all attorneys who practice estate law (and other fields of law) must understand the levels of diminished capacity. These levels include:

  • Testamentary Capacity – This is regarding the testator at the time when a will is created. The individual must be able to understand the nature of the will, what it entails, and how it will affect family and understand what property is really “theirs.” Basically, he or she must be of sound mind at the time when the estate plan was created.
  • Donative Capacity – This refers to a person’s mental capacity at the time when he or she donates or gives a gift to someone. This can also affect your estate plan if you plan to donate your estate to charity. You will need to show that you have an understanding of the extent of your gift, and be of sound mind to agree to donate your estate.
  • Contractual Capacity – This is what refers to a person’s capacity at the time when he or she enters into a contract. You must understand the nature and effect of the contract, and what will be transacted upon the agreement.
  • Capacity to Execute a Durable Power of Attorney – This is critical in estate planning. You must meet a standard of capacity when creating and executing a durable power of attorney. You must not be under pressure from anyone to assign them power of attorney, and you must understand the effect of giving that individual power will have on your estate.
  • Decisional Capacity in Health Care – This is the capacity that allows you to make decisions regarding your own health care. If you have assigned an agent, he or she will take over decision-making once you are deemed incapable of making decisions on your own. This often means if you are unable to understand the benefits and risks or alternatives that are proposed to you by a medical professional in order to make a sound healthcare decision.

Concerned About Capacity Issues? Talk with an Attorney Today

If you are concerned with capacity issues or you want to ensure that your estate plan is drafted while you are considered of “sound mind,” speak with an estate planning attorney immediately to get started. The Law Office of Andrew M. Lamkin, P.C. can assist you with your estate plan. Call today to schedule a free consultation at 516-605-0625, or ask a question online.




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