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Understanding Capacity

4 minute read

Picture yourself reading the will of a recently deceased loved one, who I will call “Mary”. Mary was quite “with it” until near the end of her life, when she suffered a stroke that sent her to a nursing home. After the stroke, Mary had difficulty remembering things, and her personality was quite different. Mary no longer got along with former friends, and made impulsive decisions.

Now imagine that the contents of Mary’s will were not at all what you were expecting to see. Perhaps a relative who you know Mary was particularly close to received nothing, while a friend who Mary had not spoken of in decades received a surprising bequest. Or perhaps a treasured heirloom you remember Mary saying she had left to her child was left to an acquaintance she had not seen in years. At this point, you realize that the will was signed just shortly after Mary’s stroke. You (rightly) find yourself wondering: was Mary capable of making the will?

Determining whether someone has—or had—capacity is very important in many estate, trust, and power of attorney matters. Alleging that a person lacked capacity can turn what would otherwise have been a simple matter of dividing up the estate into a bitter conflict. There are many reasons capacity can be challenged - brain injuries are a common reason, alongside degenerative diseases and personality disorders. These are not uncommon problems. For example, there are 25,000 new cases of dementia diagnosed each year in Canada.

Whether someone has capacity to sign a will or power of attorney depends on two things: the type of legal document the person wants to create, and the circumstances surrounding the preparation and signing of that document.

In the context of wills and estates, the test for capacity is specific to the document to be created. There are three main documents that a person may need:

  1. a power of attorney for personal care;
  2. a power of attorney for property, and
  3. a will.

A person granting a power of attorney for personal care must understand that her appointed attorney has a genuine concern for her welfare, and that she may have to make personal care decisions for the grantor.

If the person wants to grant a power of attorney for property (also known as a continuing power of attorney), the test is a bit more complicated. The grantor must:

  • Understand the type of property she has and its value;
  • Understand the obligations she owes to her dependants;
  • Understand that her attorney will be able to do everything she can do with respect to property (with the exception of making a will and any limitations set out in the power of attorney);
  • Understand that the attorney will have to account for what she does with the grantor’s property;
  • Understand that she can revoke the power of attorney (so long as she has capacity);
  • Understand that the value of her property may decline if her attorney does not manage it properly; and,
  • Understand that there is a possibility that the attorney may misuse his power.

Although wills and powers of attorney both deal with property and are often drafted at the same time, the capacity required to make a will is different than the capacity required to grant a power of attorney. To be capable of making a will, a person must be generally capable of understanding the nature and extent of her assets, and comprehending and appreciating the people who would normally receive those assets.

Although these tests are complex enough on their own, they are further complicated by the second point: the circumstances surrounding the creation of the will or power of attorney. A person living with a degenerative mental disease may be capable one moment, but not the next. Going back to our scenario, it is not immediately clear whether Mary gave instructions regarding her will before or after the stroke. Since the will was signed after the stroke, it is not clear what her mental state was at the time of signing. Perhaps Mary was capable, but it is far from clear. As such, when deciding whether a person was capable, it is important to determine whether they met the test for capacity throughout the entire process of drafting a will or power of attorney, not just at the moment of signing. This will usually require obtaining medical records and statements from family and independent counsel as to the testator’s mental state.

At Lerners LLP we have the expertise to work through this process however it is best to create your will long before there are questions about capacity, and when you are of sound mind and body. If you would like to consult with a Lerners lawyer to discuss your will, please contact us by email.

Janet E. Stewart

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