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Do you know how to address mental capacity in your estate plan?

On Behalf of | Feb 28, 2022 | Estate Planning |

Your estate plan is only effective if it’s found to be legally valid. This means that your documents have to align with applicable state laws, but it also means that you have to be able to provide assurances that you had the requisite mental capacity when creating your estate plan.

How is mental capacity determined?

In short, you possess the requisite mental capacity to create an estate planning document if you understand the nature and extent of the property that you’re disposing of as well as to whom you’re leaving those assets. That may sound like an easy determination to make, but the matter can actually end up being much more nuanced than you expect.

In fact, there are a number of factors that may be taken into account when assessing mental capacity. Those factors can include:

  • Orientation as to time and place
  • An individual’s alertness
  • Ability to concentrate
  • Deficits in long and short-term memory
  • The ability to communicate with other individuals
  • Recognition of familiar people, places, and objects
  • Logical thinking abilities
  • The presence of any hallucinations or delusions
  • The existence of repetitive thoughts
  • An inability to control mood

These are just some of the considerations that may be taken into account when determining mental capacity, which is why it’s important that you carefully consider this issue as you proceed with estate plan.

What can affect mental capacity?

There are several factors that can affect an individual’s mental capacity. Some mental health conditions, like Alzheimer’s, can impact an individual’s ability to understand what he or she is signing or the implications of the document. However, these medical conditions don’t automatically prevent an individual from legally signing off on an estate planning document.

The key consideration is going to be the individual’s mental state at the time of the document’s signing. Therefore, if the individual who signed the document was experiencing a period of mental stability and lucidity, then the testator may be found to have possessed the requisite mental capacity and therefore the document may be deemed legally valid.

How to prevent mental capacity arguments

Arguments over mental capacity can put your estate plan at risk. Your loved one’s may end up fighting over what your intentions actually were at the time of your estate plan’s creation, which can lead to damaged relationships and extensive litigation costs that can eat into the financial viability of your estate.

Fortunately, there are steps that you can take to protect a showing of requisite mental capacity. Chief amongst them is having witnesses present during the signing of your estate planning documents. It may even be beneficial to discuss your intentions with these witnesses before signing off on any documentation so that they can later attest to your clear-headedness and your intentions, if necessary.

Another option is to record your signing of the documents. Again, it might be helpful to have some conversations on camera that evidence your intentions and your capacity. Take the factors discussed above into account to make sure that you’re making the strongest showing of capacity as possible.

Consider seeking legal help for your estate planning needs

Effective estate planning is critical if you want to ensure that your assets are passed down in accordance with your wishes. But your plan may be jeopardized if your loved ones have the ability to levy allegations of inadequate mental capacity. That’s why if you’re worried about these kinds of arguments, then you may want to work closely with a competent estate planning attorney who can help protect your interests, your estate, and the future of those who you want to inherit from you.




Photo of Jennifer D. Sharpe