We take for granted the fact that we have the basic civil right to make personal decisions for ourselves. We can decide where we are going to live, with whom we are going to associate, what we are going to eat, who will be our health care professionals, what kind of medication we will take, and what kinds of medical procedures or treatments we will undergo.
We also take for granted the fact that we have the basic civil right to make financial decisions for ourselves. We can decide how we are going to make our money, how we are going to invest our money, how we are going to spend our money, whether we will make gifts to loved ones, and whether and to what extent we will make donations to support our favorite charitable causes or express our political beliefs.
Estate planning is designed to ensure that these wishes will be carried out by trusted individuals of our choosing when we are no longer in control due to mental incapacity or death. Although we know that it is important to execute a comprehensive and detailed estate plan, we often tell ourselves that we have plenty of time to accomplish that task. Of course, if we wait too long, it might become too late. Not only must we make such arrangements before death, we must also take care to make sure that we get our wishes in order before we lack the mental capacity to execute an estate plan.
An estate planning attorney should be considerate of capacity issues when a client makes an estate plan. The California Probate Code contains the “Due Process in Competence Determinations Act” which is designed to provide a legal framework for determining whether a person has the mental capacity enter into a contract, make a gift, make medical decisions, get married, and execute wills or trusts.
While Section 810 of the California Probate Code states that there is a rebuttable presumption that all persons “have the capacity to make decisions and to be responsible for their acts or decisions,” Section 811 of the California Probate Code provides several factors as evidence of incapacity. These factors include:
“(1) Alertness and attention, including, but not limited to, the following:
(A) Level of arousal or consciousness.
(B) Orientation to time, place, person, and situation.
(C) Ability to attend and concentrate.
(2) Information processing, including, but not limited to, the following:
(A) Short- and long-term memory, including immediate recall.
(B) Ability to understand or communicate with others, either verbally or otherwise.
(C) Recognition of familiar objects and familiar persons.
(D) Ability to understand and appreciate quantities.
(E) Ability to reason using abstract concepts.
(F) Ability to plan, organize, and carry out actions in one’s own rational self-interest.
(G) Ability to reason logically.
(3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
(A) Severely disorganized thinking.
(D) Uncontrollable, repetitive, or intrusive thoughts.
(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual’s circumstances.”
The California Probate Code has additional sections detailing elements of capacity in general and a specific test as to whether a person has the power to make medical decisions.
Capacity is often an important issue with respect to estate planning. While it is important that you have an opportunity to execute a legally binding plan to carry out your wishes, it is equally important that there is reasonable certainty that you are able to think clearly about your wishes and understand the significant risks, benefits, reasonable alternatives, and the probable consequences to you and to those affected by your plan.
KRASA LAW, Inc. is located at 704-D Forest Avenue, Pacific Grove, California, and Kyle may be reached at 831-920-0205.
Disclaimer: This article is for general information only. Reading this article does not establish an attorney/client relationship. Before acting on any of the information presented in this article, you should consult with a competent attorney who is licensed to practice law in your community.