Switch to ADA Accessible Theme Close Menu
Torrance Estate Planning & Probate Lawyer
Call Today For A Consultation 310-755-0383
Torrance Estate Planning & Probate > Blog > Wills > Mental Capacity And Competency: What Do These Terms Mean?

Mental Capacity And Competency: What Do These Terms Mean?


When people come into law offices to draft an estate plan, one thing that an attorney must look for is whether or not the person making the estate plan is competent to do so.


By “competent,” we don’t mean that the person understands the nuances of the law, or any evaluation of the person’s intelligence or the estate plan maker’s knowledge of finances, estate law, or the world in general. We’re talking about the mental competency needed by law, to create an estate plan.

The biggest way that (often spurned) family members or friends challenge people’s estate plan, is that they say that the deceased was not of sound mind to make the estate plan (or alter existing state plan documents) when the estate plan was made. In short—they were not competent to make the estate plan.

But what exactly is “competency?” That’s a tough question to answer.

Physical Incompetence

Physical incompetency can make someone incompetent to make or create an estate plan—clearly, someone in a coma, or in a vegetative state, couldn’t sign his or her will, or trust document, or understand what he or she is doing.

But physical incompetency often doesn’t come into play—someone who is a quadriplegic may have a perfectly sound mind, and thus, be perfectly capable of making rational, educated decisions about his estate plan.

Mental Incapacity

What about mental incompetence? That’s a tougher question to answer for a number of reasons.

Sadly, many people who suffer from mental disability, don’t know or admit that they have it, and may not even seek out medical care for those conditions. That leaves others, like family—or worse, those challenging the estate in probate court—to speculate what the deceased’s condition may have been when he or she created or altered the estate plan.

Using Diagnosis

Even a diagnosis may not be helpful. When wills or trusts are challenged in court, it isn’t enough to challenge the will or trust by saying “But he had down’s syndrome” or “but she had Alzheimer’s.” The diagnosis itself is helpful evidence, but it is not completely telling of whether someone has the mental capacity to appreciate the consequences of what he or she is doing in and with an estate plan.

Just because someone has a diagnosis of dementia doesn’t say much—people can have different stages of dementia. A dementia patient may be simply forgetful—but still, competent to make educated decisions about his or her will or trust.

The same can be said for people with learning or developmental disabilities. That person may still be able to rationally make decisions about who gets what when he is gone, despite the fact that he or she has a documented learning or developmental disability.

Making an Estate Plan

There are steps a good estate law attorney can take, to avoid challenges to mental capacity. These steps can be taken before the estate plan is drafted, and can discourage, or outright defeat, challenges to a will or trust that may be made in probate court later on.

We can help you make an estate plan that works for you. Call the Torrance will and estate attorneys at Samuel Ford Law today.




Facebook Twitter LinkedIn