Certain legal documents can be extremely helpful, even critical, when dealing with long-term and end-of-life care planning.    However, unless a person has a mind-set geared towards planning or some close experience causing a heightened awareness, the average person will delay planning until “it is needed”.  

Very often by the time a person recognizes the need to plan, they are actively dealing with a significant medical condition.  This may make the person too weak, tired, stressed by medical needs, or otherwise mentally impaired to effectively design the best plan for their circumstances.

What is the “legal capacity” needed to create documents?  The determination of legal capacity is not limited by a specific diagnosis.  Although many of my clients have a diagnosis of dementia, they still have legal capacity.  The law presumes that persons over age 18 have capacity unless a court has determined they do not.  Generally, I try to focus on the client’s ability to make well-reasoned decisions, and not focus on physical limitations, eccentricity, or lack of cooperation.  

While making a determination as to an individual’s capacity, I must keep in mind a combination of legal standards for varying types of transactions (for example, wills, contracts, and deeds) which includes statutory, regulatory, and case law, as well as ethical guidelines.  

I request that prospective clients complete a worksheet describing names and addresses of next-of-kin, as well as a summary of income and assets.  I try to engage in a conversation to gauge the individual’s understanding and appreciation of their family and financial circumstances, as well as trusted decision-making supports.  It is important that a person be able to articulate the reasoning behind their decision.  

The ability to put that information together or have that type of meaningful conversation may be impacted by mitigating factors such as loss of a spouse who always handled the finances, English as a second language, stroke or other disabling condition.  

Desired outcomes should be described consistently during the planning.  Where there is a change to the overall stated goals, deviation from lifetime values, there should be a reasonable explanation.  There may be observational clues as well, such as being un-clean or improperly dressed.  While not outright determinative, additional caution, descriptive informational guides or family support may be appropriate.

In summary, there is no “bright line” test to determine legal capacity.  The attorney may need to make a judgment call after weighing the data presented reflecting the individual’s cognitive functioning as well as the content and nature of the decision being made.  Where capacity is unclear, a clinical assessment may help to determine capacity.  When capacity is tenuous or clearly lacking, a Guardianship proceeding may be necessary, with a Judge determining who shall be allowed to make what decisions.  Nobody wants to be in this situation.  

Planning is not a once in a lifetime event.  Plans should be made early and change with your circumstances.  Sooner is better than later.