Protecting Estates.
Protecting Legacies.

When does someone lack the capacity to create a valid estate plan?

An estate plan is only legally valid and enforceable if the creator has the testamentary capacity to do so. In the state of California, there are standards that define that capacity. If you question the capacity of a loved one or the validity of their estate plan, there are factors to consider.

Testamentary capacity refers not only to your ability to establish and sign an estate plan but also to your ability to fully comprehend the plan, the process and the implications of your actions.

General awareness

The first element to consider in capacity is general awareness and orientation. Is the individual clearly aware of who they are, where they are and what the current time is? Are they able to concentrate and respond to the environment around them?

Processing information

Adequate mental capacity also requires proper processing of information. Deficits in memory, poor comprehension of conversations and an inability to fully understand their own actions all contribute to a lack of capacity.

Thought regulation

Disorganized, confusing internal thoughts, hallucinations, delusions or intrusive thoughts can cause diminished capacity. Untreated mental illnesses, like schizophrenia, can alter your capacity in these ways, including paranoid delusions and difficulty discerning what is actually real.

Mood moderation

Any individual who is struggling with persistent extreme mood challenges that are inappropriate to the circumstances, such as severe depression, unexplained euphoria and other mood-altering concerns apply in determining capacity.

Assessing capacity for an estate plan is not an exact science. It is important to assess the entire picture, not just one single component. Look for overall comprehension and participation in determining sufficient capacity.

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