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 life spans 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 regards 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 their wishes concerning their legal affairs. 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 only meet 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 immediate 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 singing 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 or revisions to current estate planning documents should be considered in the early stages of dementia.
Todd C. Ratner, Esq.
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