Introduction: My mom’s physician has declared my mom mentally
incompetent. I guess she can’t sign documents any more. That’s a
problem because her current Will leaves everything to her former
spouses’s children. Those children have not spoken to or visited her
in the last 10 years. It would be a crying shame if they inherited
In my practice in California, this question comes up probably more
often than any other I deal with. It is particularly important when
the family wants to do Medi-Cal or Veterans Aid and Attendance (also
known as the Veterans Pension) planning as this is probably going to
require changing the distribution plan set forth in the already
What physicians do and don’t do: Is the physician’s
pronouncement equivalent to a “death sentence?” Not necessarily. It
all depends on the document and your Mom’s ability to mentally
function. Physicians who are not psychiatrists don’t typically make
a determination of mental competence rather, they usually say the
person is not able to handle his financial affairs or they diagnose
the person as having dementia or Alzheimer disease.
Dementia or Alzheimer disease can be early, middle or late stage and
people in early or maybe even in middle stage often have sufficient
mental capacity to effectively sign various estate planning
documents. Even the pronouncement by a physician that the person can
no longer handle his financial affairs (or on the rare occasion the
pronouncement by the physician that the person is mentally
incompetent) is not necessarily legally final. It is simply the
opinion of one person who may or may not be an expert in that field.
Importance of Attorney Doing Investigation: This is the
reason why, when I am told by a family member that Mom or Dad is
incompetent, I always question further what, exactly, the person
means by using that term. Most of the time it is nothing more than
the parent is forgetful or that the short term memory is very poor.
Usually, in these cases, I want to see the parent myself and come to
my own conclusion. Often, I find that the parent seems to put more
of an effort into focusing and concentrating on my conversation and
the parent’s responses as on more than one occasion the child has
told me that Mom or Dad was much more responsive than usual.
Further, when I come to the conclusion that the person does have
sufficient capacity to sign whatever documents are necessary, it
goes a long way toward the eventual validation of the document.
After all, if the documents are contested after Mom dies, having an
attorney who is not financially involved in the distribution of the
assets on the person’s death and who was present at the actual
signing of the documents can be very persuasive evidence.
Presumption of Capacity: Here are the California rules. They
are going to differ somewhat from state to state. First, until a
court determines that one lacks the necessary capacity it is
presumed that he is legally capable of making decisions.
Wills–Test: So what about the capacity to execute a will? The
standard for this type of act is typically a lower standard than
that necessary for entering into a contract. If the person
understands the nature of his act (that he is signing a Will), knows
what he owns (at least in general context), and knows his
relationship to his living family members, and does not suffer from
hallucinations or delusions that cause him to leave his assets to
those he would not normally have, then he is competent.
Power of Attorney–Test: To execute a power of attorney a
person must have the capacity to contract. That is a higher standard
than being able to sign a Will and requires the person to understand
the rights and responsibilities created by the document, the
consequences for the person of signing the document, and the risks
and benefits of doing so. (The importance of mental capacity after
the person has signed the power of attorney is discussed here.)
Living Trust–Test: The test for capacity to execute a living
trust has always been somewhat up in the air as it occupies a middle
ground: is it more like a Will or more like a contract?
Summary: In any case, the law is clear that a diagnosis of a
particular disorder, such as dementia or Alzheimer, is not the test
but, rather, the conclusion of incompetence must be made on evidence
of a significant deficit in mental functions. Anyone in this
situation should talk to that person’s attorney at once as Mom’s
mental capacity probably is probably going to continue to diminish,
Capacity, Trusts, Wills, Powers of Attorney, Medi-Cal,
Medicaid, Veterans Pension, Aid and Attendance, California