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  • Writer's pictureJenny Rozelle, Host of Legal Tea

Cautionary Tales - Mental Capacity to Sign a Will - Episode 93


Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is a cautionary tale, where we talk about real-life cases with real-life clients with real facts – they’re things me or my office have worked on. For today’s episode, we’re going to be talking about a case/a client where it’s a perfect example of two things – 1) First, it’s an example of not waiting until the absolute 11th hour to #DoYourEstatePlan and 2) Second, it’s an example of what us, estate/elder law attorneys, have to weigh and analyze if someone has the mental capacity to sign estate planning documents. Unfortunately for us, there’s no super pretty bright line rule – like, some thing that “if someone has dementia, they can’t sign an estate plan.” That’s not necessarily true. They could have moments where they’re lucid and COULD sign – so that’s what I mean, there’s no bright line rule. There are laws and guidelines for us, but it’s super, super vague. Very subjective.

Alright, so let’s talk about “what happened” first and then get into the “when is it too late to sign documents” after the story. Let’s name the client, Tom. So, Tom’s son and daughter-in-law reached out to my office and basically were pleading for help. Tom had no estate plan at all and Tom’s health started to massively and quickly decline. Every day, we got a phone call from Tom’s son or daughter-in-law with something else that had happened to Tom and gone wrong. At one point, we had talked to them about trying to get a Trust in place, so we could seek our Medicaid benefits for his likely long-term care stay that was inevitable really. Then, things changed; Tom’s condition worsened and next thing we know, he’s in the hospital. So, we had scheduled one of the attorneys in my office to go to the hospital to get some basic documents signed – think, like a Last Will and Testament. Our thought was, “If crap really hits the fan, at least we’ll have that in place.”

That day comes and our attorney gets to the hospital. She finds out that the hospital has moved him (the family didn’t even know yet! That’s how quickly things were moving and changing!) … and they had moved him because he had a massive internal bleed. The attorney finally gets to the right room and asks the nurse about his condition. The nurse said that he probably really didn’t know what was going on and not to mention, he has absolutely no strength. Like, he probably wouldn’t even be able to hold a pen to sign. Sad, huh?

Our attorney, in effort to confirm what the nurse had said, went into the room, attempted to talk to Tom, and discovered Tom was not aware of what was going on at all; he did not understand who the attorney was; why she was there; etc. And, like the nurse said, Tom could barely even open his eyes – so the likelihood of holding a pen and signing was becoming less and less likely. Actually, completely unlikely. So, the attorney stepped out of the room and actually gave me a call – she wanted to bounce the situation off another attorney to just make sure my brain agreed with what she wanted to do – and what she wanted to do was walk away and not let him sign. I agreed. After she explained what the nurse said and what she experienced, it was clear to me that Tom was in no condition to sign those documents. So, the attorney departed the hospital and informed Tom’s son and daughter-in-law. Thankfully, they understood our predicament.

That’s, sort of, where the story ends (at least for now). I say it like that because this “cautionary tale” story actually just happened last week. So, I’m not sure if we’ll hear that he’s gotten better and maybe we can talk about signing again – or if we’ll hear that he’s decline and maybe passed away. Though, I think the possibility of maybe signing in the future, IF he does get better, is a good transition to what I want to talk about as the “second” part of this episode (as I referenced earlier) which is how does someone like me, an estate/elder law attorney, determine if someone has the mental capacity to sign estate planning documents like a Last Will and Testament. You know, like I mentioned earlier, this is a really big gray area. I think a lot of people think that, say, someone has been diagnosed with dementia, for example, that they cannot sign. That’s not true. As many of us know, dementia comes in different stages – so, think of someone who is in the really early stage, they usually have enough capacity to sign estate planning documents.

Alright, so WHAT is the standard to signing a document like a Last Will and Testamentary? I kind of feel like I’m about to answer a Bar Exam question! So, for a Will to be considered valid, the person creating the Will must have TWO things – something called testamentary INTENT and testamentary CAPACITY. Actually, I say that, but yes, it has to have these two things, but it also has like formality requirements – like, a Will has to have two unbiased witnesses. People think Wills require notarization, but they technically don’t. They minimally need two unbiased witnesses. Anyway, these two things, testamentary intent and testamentary capacity, are commonly shoved into one big over-arching requirement, but technically they are two separate things.

First, testamentary intent means that you, the creator of the Will, must: 1) Be of sound mind who INTENDS to make the Will; and 2) Be free of fraud and undue influence. That latter thing basically means that there’s no funny business going on. Like, no one has a gun to your head to sign the thing; no one has pressured you into signing it; etc. Second, testamentary capacity means that you, as creator of the Will, has sufficient mental capacity. So, what in the world does that mean, right? Well, the Bar Exam looooves to test on this because it’s such an old school rule on how you test for it. To test if someone has sufficient mental capacity, you must:

1. Know the extent and value of your property;

2. Know the persons who are the “natural objects of your bounty” (like whaat?!)

3. You are capable of retaining the facts necessary to direct the making of a Will;

4. And, that you understand the nature of the act that is about to be performed.

That’s what the Bar Exam expects you to be able to spew out, but I’m sure you’re thinking, “What in the actual heck does that mean?” Well, let’s talk about it!

In normal people language, it basically means that you, as the creator of the Will, have to know/generally understand your assets (not to the penny – but be able to say generally-speaking some of your assets); the people around you (who they are and how they treat you); and that the purpose of the Will is to take place after you pass away on the assets you know of and to who you want them to go to. That sounds like a lot, but I feel like it’s a fairly low threshold. I actually, in preparation for this episode, pulled my ol’ Bar Exam outlines and notes and in the outlines, they even say that 1) there’s a general presumption that you, the creator of the Will, is sane – so for someone to say you do NOT have the capacity to make the Will, is on the person to prove you were NOT. A little fun fact – in my outline, it actually says, “Do not be misled by someone that is eccentric – it’s very difficult to win a lack of capacity argument absent concrete evidence.”

So, if I anchor back to my story here, Tom, I don’t think Tom had the INTENT or the capacity, right? He would have been effectively unable to overcome the hurdles, I think, to show he had the intent and capacity. His was more of a physical incapacity – like, he couldn’t really voice his wishes, voice his goals – so how would we have been able to tell if he had the intent or capacity. Compare Tom to someone who has dementia – so, like I said earlier, it’s possible that someone with an actual diagnosis of a cognitive impairment COULD overcome those hurdles. And actually, I’ve helped several clients, who have been diagnosed with some type of mental incapacity, but they’re in the early stages … and they COULD express intent and they COULD overcome the capacity test!

Unfortunately, in my world, this is a very litigated subject, which I’m sure you could see why. It’s so subjective, right? Is it, in my opinion, okay for this person to sign? Keep in mind – I’m not a medical doctor. I know the legal threshold of creating a Will – and medical doctors would know the medical aspect, obviously. So, there are probably plenty of cases out there where the attorney thought it was okay to have the person sign a Will, but the doctor would say that the person struggles or cannot make legal and financial decision. That could become directly in conflict with one another, you see now?

Like I have talked about before on here, our legal system isn’t exactly setup very well to handle truly disputed cases. So often, cases get settled because it becomes economically and financially inefficient to keep fighting, so parties end up settling. Otherwise, if they don’t, they could potentially get upside down – meaning if they’re fighting over Mom’s estate that is worth $300,000, for example, and their legal fees continue to increase and accrue, at what point is it truly not worth it anymore? Maybe besides emotionally and to “make a point.” That’s why estate litigation attorneys exist – to navigate these waters.

One way to deter disputes like this is to encourage whoever is creating the Will to document, document, document – and some attorneys have even developed a form for a doctor to complete that will specifically ask them questions to gauge whether someone has the requisite capacity to sign. So, instead of simply the doctor saying “oh, they have dementia and shouldn’t be making legal and financial decisions” … instead, they complete this form which is asking them questions to support (or not) the test to determine if someone has the capacity to sign (remember those things about knowing assets, generally speaking; knowing people around the, etc.). So, instead of asking the Doctor more technical, medical questions – it’s more “fluffy” questions about what does this person know, understand, etc. Does that make sense?

I actually had a client recently that was disinheriting a child and she was concerned her child would say that she was “off her rocker” – well, to deter that argument, she went to her doctor and had the doctor complete a similar form that I just discussed. So, consider that idea if you’re concerned about someone kicking up a fuss about “capacity” to sign a Will. Alrighty … let’s wrap this episode up and shift to a sneak peak of next week. We are back to the current events/current trends topic – where we talk about something I’ve seen or run across, maybe on the news or social media, that I think would be interesting on here. During next week’s episode, we are going to talk about estate planning for young adults. I was inspired to write this episode because I stumbled upon an article that dove into a conversation about more-and-more young adults doing estate planning – and WHY that may be. So, let’s talk about that + maybe talk about what is a good estate plan for young adults. Anyway, we’re going to talk about that next Tuesday, Legal Tea Listeners. So until then, take care and be well!


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