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Legal Mental Capacity Requirements Vary Depending On The Legal Documents

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The best way to avoid having to deal with the legal ramifications of diminished mental capacity is to create an estate and asset protection plan while you are of sound mind and to update those documents as needed. Proper execution of legal documents requires that the person signing have the “capacity” to understand the implications of the document. Very often mental capacity diminishes with age and certainly with the onset of illnesses such as Alzheimer’s Disease. Diminished mental capacity can occur as the result of accidents as well. A young person could be subject to diminished capacity just as easily as an elder loved one. So as an attorney I always encourage people to act sooner rather than later, in other words create your estate plan well before you need it.

Mental Capacity Can Vary From One Moment Or One Day To The Next

If you are helping a parent or loved one update or establish estate plan documents while they have been diagnosed with diminished mental capacity, know that their capacity can vary depending on the disease, the time of day, the effects of medication. The person could be fully lucid from one moment or one day to the next. In addition, it’s important to know that greater understanding is required for some legal documents than for others. For instance, the mental capacity required for entering into contracts is higher than that required to execute a will. And depending on where your loved one resides, the legal capacity requirements for different documents can vary from one jurisdiction to the next.

The Duty Of Estate Planning Attorneys Is To Ensure Competency

Besides having the need to sign legal documents there is no other reason to assess someone’s ability to understand or their mental capacity. Attorneys also have many laws in place that guide them to take appropriate actions to protect clients who exhibit diminished capacity. Typically, evaluations of mental capacity are made by the courts or health care providers.   However, family members, attorneys, and other advisors play a critical role in identifying the need for such an assessment.   For example, a family member may notice that a parent has difficulty remembering people, appointments, and/or key events, indicating significant memory loss.   An attorney may find a client is unable to effectively communicate his or her desires or cannot make decisions independently.   In addition, if testamentary decisions are likely to be challenged by family members or others in court, a formal assessment of testamentary capacity becomes critical to ensure the estate plan is not invalidated.

Please Don’t Procrastinate

With Alzheimer’s Disease on the rise and deadly viruses popping up more frequently it’s impossible to know when an estate plan will be needed. But, at some point, an estate plan is going to be an important part of most people’s transition from this world to the next. Making that transition smooth for the loved ones left behind is one of the greatest gifts we can leave. If you have not yet created an estate plan, please do not procrastinate. Give our office a call.


Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!

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