DO YOU HAVE THE CAPACITY?

We all have those moments…you walk into the garage and can’t remember why you’re there; you meet your boss’ husband for the umpteenth time and suddenly can’t remember his name. Some people jokingly call these “senior moments.”  They are totally normal and everyone has them.   Even though most people understand that a bit of forgetfulness is a normal part of the aging process, these senior moments often raise the scary specter of dementia and the loss of competency.

At the Elder Law Offices of Barry M. Meyers, we deal with issues of dementia and competency every day. This is because we must ensure that every client has the capacity to independently understand and execute the legal plans and documents that we determine will best accomplish their goals.  We are most often looking at competency issues through the lens of common estate planning documents such as wills and powers of attorney. It may surprise you to learn that different types of estate planning documents require different levels of capacity.

Wills and other testamentary documents require the least amount of capacity. In Washington, this boils down to three questions

  1. Does the client understand the makeup and extent of their property
  2. Does the client understand the relationship between themselves and the people to whom the property is to pass? (This is sometimes referred to as “understanding the natural objects of his or her bounty.”)
  3. Does the client understand that the purpose of the will is to pass their property upon their death?

The capacity required to execute other common estate planning documents, such as powers of attorney, has not been specifically addressed by the Washington legislature or courts, but it is generally regarded as being higher than testamentary capacity. Many states have come to the conclusion that in order to execute powers of attorney a person must have “contractual capacity.”  This same standard usually applies to changing beneficiaries on things like life insurance and IRAs as these documents are types of contracts.

This means they must understand:

  1. The rights, duties and responsibilities created or affected by their decision;
  2. The probable consequences of the decision(s) they are making; and
  3. The significant risks, benefits of, and reasonable alternatives to their decision(s).

So, what does this mean in everyday practice? First off, diminished capacity does not mean lack of capacity.  If you have been diagnosed with dementia, this does not mean you don’t have testamentary or contractual capacity.  Many people retain good cognitive powers for a long time after an initial dementia diagnosis.

When you retain a lawyer to draft a will or power(s) of attorney, it is ultimately their decision as to whether you have the necessary capacity to execute the documents.   However, if you feel like your capacity might be questionable, you should talk to your doctor about writing a letter stating that they believe you have capacity.  Such a letter will assist a lawyer in assessing your cognitive abilities.

Finally, don’t wait until it is too late. If you don’t have planning documents in place, there is no time like the present.

Barry M. Meyers

David M. Neubeck 

Elder Law Offices of Barry M. Meyers 

www.elderlaw-nw.com

  

 DISCLAIMER: The content of this newsletter is: for information purposes only, subject to change by government agencies, should not be relied upon as current, and, does not constitute legal advice. Reading this newsletter does not establish an attorney-client relationship.