Many individuals, including legal practitioners and their clients, fear the possibility of losing their mental faculties and becoming reliant on others for critical decision-making. As life expectancy continues to increase, the risk of outliving one’s mental capacity becomes more pressing. Despite its significance, the exact nature and onset of incapacity remain complex and difficult to pin down, even for experts in psychiatry, ethics, and law.
Estate planning attorneys who work with the elderly or disabled, must continuously evaluate whether their clients possess the necessary capacity to engage in specific transactions or execute particular documents. While the law generally presumes competence until proven otherwise, the definition of legal capacity can vary depending on the context.
Defining and Determining Incapacity
In estate planning and medical decision-making, wills and trusts attorneys must ensure that their clients possess the requisite mental state to make informed decisions. However, determining whether a client has become incapacitated can present an ethical dilemma. If a client is clearly incompetent, the practitioner must decide whether to recommend guardianship or conservatorship, which are court-directed processes providing oversight but often involving significant time and financial costs.
Legal capacity can vary in its forms, such as the capacity to stand trial, parent, or confess to a crime. Three specific types of capacity pertinent to planning for incapacity are:
- Capacity to Make a Will: According to General Laws Chapter 190B, § 2-501, any individual over the age of 18 who is of sound mind may create a will. Testamentary capacity requires that the person understands the nature and extent of their property and recognizes the individuals who might reasonably expect to be remembered in their will.
- Capacity to Contract: Entering into a contract requires a higher level of mental capacity than testamentary capacity. This involves understanding the nature and quality of the transaction, as well as its significance and consequences.
- Capacity to Give Informed Consent: The legal framework for informed consent in medical treatment requires that a patient fully understands the benefits, risks, side effects, and potential outcomes of treatment options. This principle also applies to estate planning and decision-making for incapacity.
Lawyers are obligated to ensure that clients possess sufficient capacity to make estate planning decisions. Failure to do so may lead to allegations of incompetence in representation and potential malpractice claims. Practitioners must resist the temptation to impose pre-formulated solutions on clients, as these may not align with the client’s best interests.
Conclusion
Planning for incapacity is a critical aspect of legal practice, requiring careful consideration and diligence. By understanding the various forms of legal capacity and implementing effective planning strategies, attorneys can help clients maintain control over their personal and financial affairs, even in the face of potential incapacity.