Watching someone you love becoming frail and confused can be a very distressing experience. It’s especially worrying if you’re concerned that your loved one is no longer able to make decisions for themselves.
An estimated 5.7 million people in America are now living with dementia. This number is predicted to grow in the future, so the problem of lack of capacity looks sure to increase.
How can you tell if your relative has a lack of mental capacity? And what does the law say about how this tricky situation should be handled? Read on to learn more.
Why Is Lack of Capacity an Important Issue?
The United States is seeing an increase in probate litigation. This includes wills being contested due to concerns regarding lack of mental capacity.
It’s likely that this is due to an aging population. Increasing numbers of older people suffer from health conditions affecting their cognitive abilities. It may also be connected to the considerable transfer of wealth between the “baby boomer” generation and their families, and also the increasing complexity of family structures as society moves away from traditional nuclear set-ups.
If a person appears to be lacking mental capacity to make decisions, this can invalidate their will. This can lead to family disputes and long and lengthy legal battles.
Lack of Capacity Law
There are clear guidelines around how lack of capacity impacts on the law. It’s important to bear these in mind if you are assisting a loved one with legal documentation.
For a will to be legally enforceable, the person signing it must demonstrate that they do not lack mental capacity at the time of execution. It’s worth noting that simply having a mental illness does not necessarily indicate a lack of mental capacity. Equally, occasional mental lapses as part of a normal aging process do not necessarily prove mental incapacity.
The law states that individuals must demonstrate that they understand the nature of the documents being formulated and signed. Specifically, the testator (person making the will) must understand that the documents relate to disposing of their property.
They also need to understand the extent and approximate value of their property and the relationships existing between themselves and their beneficiaries.
The American Bar Association, in partnership with the American Psychological Association, has created a capacity worksheet to help lawyers to identify signs of lack of mental capacity.
Individuals who lack mental capacity can be very susceptible to undue pressure and there are many cases where relatives and caretakers have taken advantage of this for their own gains. For this reason, it’s sensible to have a lawyer present when wills and trust documents are drawn up, as this can help to remove any doubts surrounding the process.
Understanding Mental Capacity Issues
Contesting a will due to lack of capacity is an extremely complex issue. It would be sensible to employ the services of an experienced attorney to help you if you ever found yourself in this situation.
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