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Mental Capacity from a Lawyer's Perspective

A lawyer cannot ignore signs of diminished capacity. Failing to recognize incompetence in a client can bring disastrous results, not only for the client, but for the attorney as well. A lawyer may know of a potential mental capacity issue prior to meeting with a client or they may not. But, what is certain is that a lawyer has a duty to determine capacity prior to executing any documents. What you may not know, is there are different standards for mental competency depending on the type of document a person seeks to create. A lawyer may be required to advise a course of action regarding a person’s ability to make a will, to undertake medical or financial decisions, or the lawyer may need to determine a person’s capacity to enter into a contract.

The lawyer’s assessment of a potential client begins with the knowledge that the law presumes that adults have capacity. However, in accordance with their legal duty, the attorney will take steps to assess the client’s abilities and understanding. If, during that initial assessment, the lawyer identifies “red flags” that indicate a diminished capacity an expert may be sought out to assist with that determination.

For a formal capacity assessment, the attorney will seek a qualified geriatrician who possesses the proper credentials. As I mentioned earlier, the degree to which a person is determined to be competent depends on the task in question. Here are some common examples:

  1. If an individual wants to create a will or a trust document, that individual must have sufficient mental capacity “to comprehend the nature and extent of his property, to recall the natural objects of his bounty, and to determine and understand the disposition of property which he desires to make.”

  2. When entering a contract, a person “must, generally, possess sufficient mind to understand in a reasonable manner the nature and effect in which the person is the person is engaged.”

  3. If a person wants to convey a deed, that person must have “sufficient mental capacity to understand the business in which he was engaged, to know and understand the extent and value of his property, and how he wanted to dispose of it, and to keep these facts in his mind long enough to plan and effect the conveyance in question without prompting and interference from others.”

Due to these different capacity standards, it is critical that when an attorney seeks out a medical expert for assistance, that the expert focus on what is needed in a particular case to show a sufficient degree of capacity under the unique facts and circumstances for the specific acts. One final hurdle to clear is for the medical expert to obtain consent from the patient/client in order to discuss the results of any examination with the attorney. If you would like to know more about capacity issues in individuals, or if you would like to know more about planning your future by utilizing a will or trust, please contact Attorney Brandon Wagner of Cline, Cline & Griffin at, or by calling our office.

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