Testamentary Capacity the Concept of ‘Sound Mind’ Is Not a Black-And-White Matter by TODD C

Health CAre Law www.HealthcareNews.com March 2012 1 Testamentary Capacity The Concept of ‘Sound Mind’ Is Not a Black-and-White Matter By TODD C. RATNER, Esq.

t the turn of the 20th century, It is important the average life expectancy was to note that the a mere 49 years, and dementia Testamentary capacity ... requisite capac- A was a rare phenomenon. Today’s ity to execute average life expectancy exceeds 77 years. refers to one’s ability to be estate-planning As lifespans increase, estate-planning at- of sound mind in reference documents torneys confront the growing challenge of differs from the representing older clients who may have to altering or creating estate- requisite capac- started to suffer capacity-related health is- planning documents. ity to execute sues such as Alzheimer’s disease. contracts. The So how is mental capacity determined competency with regard to legal matters? necessary to As a threshold, when a client initially sion immediately prior to and subsequent enter into a for- meets with an attorney, the attorney must to execution, as long as the testator pos- mal contract is greater than that to execute determine whether or not the client has sesses the requisite testamentary capacity estate-planning documents. The standard the requisite mental capacity necessary at the moment of execution. So, even if the for entering into a contract is different to reasonably articulate his or her wishes testator does not recall signing the docu- because the individual must know not only concerning their legal affairs. Testamentary ment the day following execution, it does the nature of their property and the person capacity is a legal term that refers to one’s not invalidate the document if the testator with whom they are dealing, but also the ability to be of sound mind in reference to understood it when he or she signed it. broader context of the market in which altering or creating estate-planning docu- The mere existence of the onset of they are agreeing to buy or sell services or ments. dementia does not preclude the signing of property. Unfortunately, legal testamentary capac- estate-planning documents, provided that The estate-planning attorney must be ity or competence is not a black-and-white the necessary criteria for mental capacity aware of not only the mental-capacity stan- determination. are met. However, the drafting of, or revi- dards for a client to execute estate-planning The Massachusetts Supreme Judicial sions to, current estate-planning docu- documents, but also the appropriate steps Court provided the following standard ments should be considered in the early to take to prevent a successful challenge definition of capacity to execute wills: stages of dementia. to an estate plan. The potential threat of “Testamentary capacity requires ability The attorney’s duty to confirm a client’s litigation over estate-planning documents on the part of the testator to understand testamentary capacity exists in every estate- is always a consideration for the drafting and carry in mind, in a general way, the planning matter, and confirmation is usu- attorney. The possibility of a contest and nature and situation of his property and his ally determined while conversing with the subsequent litigation, and the correspond- relations to those persons who would natu- client. The attorney should inquire further ing costs associated, are even greater if the rally have some claim to his remembrance. at the first sign that the client may not have testator’s mental capacity is in question It requires freedom from delusion, which is testamentary capacity. It is important to prior to the execution of the estate-planning the effect of disease or weakness and which confirm that forgetfulness is not a sign of documents. might influence the disposition of his prop- a larger capacity issue, because not every In order to curtail the potential of a erty. And it requires ability at the time of forgotten fact or misstatement results from contest, the attorney must determine execution of the alleged will to comprehend incapacity. Clients may exhibit varying if the testator has the requisite mental the nature of the act of making the will.” degrees of lucidity depending upon factors capacity. In the event that the testator has In general, the requirements of testamen- such as time of day, location of the meeting, reduced mental capacity due to dementia, tary capacity are fairly simple. The testator and the presence or absence of family mem- the attorney must be well-informed of the must meet only this minimal test at the bers. Attorneys should attempt to schedule diagnostic steps and stages of the disease moment the estate-planning documents are the appointment at a time and in a place in to determine testamentary capacity. Estate executed. Therefore, documents may be val- which the client is likely to be functioning planners should include a standardized id even if the testator is in the midst of delu- at their highest level. series of questions designed to confirm tes- Health CAre Law www.HealthcareNews.com March 2012 2

tamentary capacity in every estate-planning pacity challenge. As such, it is imperative enced estate-planning attorney. matter to ensure that they are fully focused for the drafting attorney to keep accurate It is essential that the individual making on the question of capacity. These noninva- and complete records of any evaluations. decisions relative to their estate-planning sive questions provide probative evidence In the event that the client has been considerations have the testamentary ca- and also increase credibility to the attor- deemed to not have the requisite testa- pacity to do so. Oftentimes, the determina- ney’s testimony in a subsequent litigation mentary capacity to execute their estate- tion is a joint effort by attorneys and medi- contesting the client’s capacity. Typically, planning documents and does not have a cal personnel to confirm the capacity of a the attorney does not have the requisite health care proxy and/or a durable power client. Attorneys must ensure that addition- skill to make definite capacity determina- of attorney, a guardianship and/or conser- al measures are undertaken, especially with tions in complex cases. As such, physicians vatorship may be necessary. A guardian is a those inflicted with the onset of dementia, and other health care workers should be person appointed by the probate and family to reduce the likelihood of a contest. v engaged. court to handle the personal affairs of an Doctors and other medical personnel ‘incapacitated person,’ and a conservator Todd C. Ratner is an estate-planning, busi- cannot personally make a determination as is person who is appointed by the court to ness, and real-estate attorney with the law firm to whether or not an individual has testa- manage the estate of a protected person. Bacon Wilson, P.C. He is a member of the Na- mentary capacity, since only a judge has the Petitioning the court for a guardian and/or tional Academy of Elder Law Attorneys and the authority to render a person incompetent. conservator is a potentially costly, time- Estate Planning Council of Hampden County; However, they can provide a professional consuming, and public process that should (413) 781-0560; baconwilson.com/attorneys/ evaluation that will both help the attorney be avoided if possible. As such, if your loved ratner_2 make this decision and provide significant one has been diagnosed with dementia, evidence in the event of a subsequent inca- they should immediately contact an experi-