Assessing Consent and Capacity Issues

An individual passing away or becoming mentally incapable can be a very difficult and emotional time for their loved ones. However, it is important to be informed about consent and capacity issues that can arise when planning for the future, whether it is upon death or an incident that could result in mental incapacitation.

What is Capacity?

If a person is incapable of understanding the nature of their decisions and the actions that result from those decisions, they are considered to be lacking capacity. Illnesses such as dementia or substance abuse can cause mental incapacitation, resulting in an individual being unable to make certain decisions for themselves. If a person lacks mental capacity in some form, they cannot create a will since they are unable to properly appreciate the nature of their decisions.

How is Capacity used to challenge a Will?

When someone dies with a will, their mental state when creating their will can become a point of contention if an estate is challenged. Although challenging a will is very difficult in most cases, arguing that the person who created the will lacked the requisite capacity to make a will is one of the most common ways to successfully challenge an estate.

Under the law, adults that are 18 years or older are presumed to have the requisite mental capacity needed to create a will. It is important to note that in some jurisdictions, people under 18 who are married or in the military may have the ability to create a will.

If someone wishes to challenge a will based on mental capacity, they need to demonstrate that the person who created the will could not appreciate the consequences of making the will at the time the will was signed. The person who created the will must understand things such as:

· The nature of the will and its consequences;

· The extent of the property being disposed of; and

· The claims that could be made by people who expect to be provided for under the will.

If a will is successfully challenged on the grounds that the person who created the will lacked mental capacity at the time the will was signed, either the entire will or parts of it can be voided by the court.

Powers of Attorney

Having a Power of Attorney is another avenue to deal with potential capacity issues that may arise. A Power of Attorney is a legal document that provides someone else the right to make decisions on an individual’s behalf should they become unable to make decisions themselves.

There are two different types of Power of Attorneys, which include:

· Power of Attorney for Personal Care, which is the person that has the ability to make decisions about health care, housing and various other aspects of one’s personal life should an individual become mentally incapable of making these decisions themselves; and

· Power of Attorney for Property, which is the person that has the ability to make decisions about an individual’s financial affairs such as paying bills, collecting debts, selling properties and much more.

Although creating a Power of Attorney is not legally required in any case, it is highly recommended to do so in the event that an individual becomes mentally incapable of making decisions themselves. The lawyers at Tailor Law understand the importance of planning for all circumstances and have extensive experience dealing with capacity issues in wills and drafting powers of attorney.

If you are looking for more information about consent and capacity in relation to wills and estates, do not hesitate to contact us and our specialist Wills and Estates Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.

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