When dealing with legal documents, you may have heard the term “capacity”. In order for any legal document to be properly executed, the individual signing the document must have the capacity to understand the contents of what he or she is signing. If the person does not have the capacity to understand what they are signing, the documents can be deemed invalid.
In regard to estate planning, capacity can have a significant impact on preparing and properly executing any necessary documents. For example, when creating a will, a person must have the capacity to understand what property they have and how they want the property distributed upon their death.
How Do You Know if Someone Has the Capacity to Understand Documents?
Ultimately, capacity requirements can vary based on the specific estate planning documents. Examples of various estate planning documents and the associated mental capacity requirements are examined in further detail below.
Wills – What are the Mental Capacity Requirements?
While every state has different laws surrounding estate planning, for a will to be valid in most states, including New York and Virginia, the individual creating his or her will (known as a testator) must be 18 years of age or older and be “of sound mind”. This is referred to as testamentary capacity.
In New York, the testator must be able to understand the property and assets that he or she owns, who will inherit that, and the consequences their will has.
In Virginia, to have the proper testamentary capacity, the testator must be able to recognize the property and assets they possess, the people who will inherit it, the consequences of their will and, additionally, must be able to both read their will and have the document read to them.
Trusts – What are the Mental Capacity Requirements?
Similar to wills, trusts must be created by someone who is of sound mind and not be created as a result of undue influence or fraud.
Powers of Attorney – What are the Mental Capacity Requirements?
As with the above documents, you must be of sound mind to create Powers of Attorney. If you are not, the documents can be deemed invalid.
To avoid any questions as to the validity of your or your loved one’s estate planning documents, it is advisable to ensure you or your loved one is of sound mind and can understand the documents that are being executed. Additionally, most of the documents referenced above require witnesses or notaries who can observe whether you or your loved one have the capacity to understand what is being signed.
If you or your loved one’s mental capacity comes into question, it is a good idea to get checked out by a medical professional who can perform various tests to determine mental capacity.
What if Your Loved One is Incapacitated?
Even for some with Alzheimer’s disease or dementia, they may still possess the required mental capacity to understand and execute their estate planning documents.
Ultimately, it is in the best interests of you or your loved one to create an estate plan before there can be questions regarding your or their mental capacity. Life is unpredictable, so it is never the wrong time to get started on creating or updating your estate plan.
For assistance with creating or updating any estate planning documents, contact us today. For more information regarding various estate planning and elder law topics, view our resources page, where you can find our previous blog articles, newsletters and our informative webinar series.