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  • Roxanna Cian

When is it too late to make a will?

A will is a legal instrument which allows the person writing it (the testator or testatrix), to make decisions of how his or her estate will be distributed after his or her death. A power of attorney permits a person to grant authority to a trusted person to make decisions on their behalf. There are two types of powers of attorney - for property and personal care. A power of attorney can also be limited to a particular property or timeline, or be unlimited and continuing after the donor of the power has lost capacity. A power of attorney ceases to be valid at the time the person passes away, at which time the will will take effect.

In order to create a valid will or power of attorney, a person must possess capacity. What is capacity in law?

Testamentary Capacity

Testamentary capacity refers to the legal capacity required for a person to choose to be bound by the wishes he has expressed through the written will. Testamentary capacity is measured differently from cognitive capacity. Although a person may be experiencing low cognitive capacity, he may still meet the threshold to make a will. There is a higher threshold for the legal capacity necessary for making a will as opposed to giving a power of attorney.

When cognitive decline is in question, a lawyer must ensure that the testator fully understands the consequences of preparing a will or giving a power of attorney. A lawyer may conduct their due diligence by performing a legal capacity assessment to evaluate whether the client is capable of making the will.

The assessment must demonstrate that the client is of a “disposing mind”. (Palahnuk v Palahnuk Estate, 2006; Vout v Hay, 1995; Brandon v Brandon, 2007).

The meaning "disposing mind" includes:

(1) Understanding the nature and effect of the document

(2) Remember the parties that are under the effect of the will/power of attorney

(3) Understand the nature of the claims being executed by making a will/power of attorney

The lawyer is professionally obligated to determine whether the person is of capacity to make a will or give a power of attorney. Often this test involves a degree of subjectivity as the lawyer will ask their own competency-seeking questions during the evaluation. Ultimately, the lawyer has discretion in his capacity assessment decision.

When drafting a will or power of attorney for a person experiencing cognitive impairment, lawyers and their clients must be aware that the instrument may later be contested by a family member, beneficiary, or someone else having an interest in the person's property or estate, for lack of capacity. As a safety measure against this potential situation which can invalidate the instrument, a lawyer may draft a memo after the documents are signed stating why she believed the person to have shown signs of competency and ability to understand what he was signing. In some cases, it may be valuable to have a physician write a letter testifying to the capacity of the client.

Currently, a lawyer who chooses to attest wills remotely, may record the meeting when the testator or donor is executing the will or power of attorney. Although not yet tested in court, the videoconference evidence may help support the validity of the instrument if it is later contested in court.

Clients suffering from conditions such as Alzheimer’s and dementia may still be able to prepare a legally binding will or power of attorney for themselves. Depending on the degree of mental impairment, people afflicted by these conditions can and have been found to be competent enough to understand and freely consent to making such instruments.

Overall, it is imperative that a will is prepared before health problems and natural aging interfere with testamentary capacity. Do not wait until it is too late.

For a free will consultation, get in touch with our office.

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