CAPACITY

WHAT IS CAPACITY?
The test for capacity to make a will or power of attorney is one of the concerns which many people have and I am asked quite frequently what it is. Capacity is necessary for entering into legal documents. Wills and powers of attorney are definitely legal documents. Simply put the person making the will, the testator, must understand the nature and effect of what they are doing and the extent of the property which they are dealing with. They must also understand and appreciate the claims which might be made against their estate to which they should give effect. Most importantly they should not be suffering from a disorder of the mind or an insane delusion which could influence the person to dispose of their property which they would otherwise not have done.
In preparing a will lawyers must assess the testamentary capacity of their client. It is not enough for the client to answer questions apparently rationally. This is especially true if the client is weak or ill or possibly on medication. Even more importantly if the client is revoking an existing will the reasons are important and should be noted. The original will should be reviewed and the reasons why revisions are made need to be discussed. Lawyers need to make sure that the instructions are given without pressure from anyone and that the client understands the effect of the will.
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Powers of attorney for personal care on the other hand only becomes effective if the donor is unable to give instructions for medical procedures or other issues related to their day-to-day well-being.
Without a properly executed will and power of attorney for property and personal care there is uncertainty as to who will manage one’s affairs. On incapacity or death this uncertainty causes much turmoil in families which are otherwise close and even more upset where there is dissension among the family members. Most people do not realize that dying without a will while still being married, even though separated for many years, means that the estranged spouse receives benefits otherwise unintended. On the road of life a well-planned legal roadmap avoids numerous pitfalls and detours!