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. Consent and capacity are important to plan for when making financial decisions in the future.


What is Capacity?

A person is not mentally capable of understanding the consequences of their decisions if they are unable to understand them. 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 to challenge a Will Using Capacity?

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. People under 18 may have the legal right to make wills, though not always.

A person’s mental capacity is the ability to understand and appreciate what they are doing. 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 people who the will is for want to know what they’ll be getting.


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 grants someone else the ability to make decisions for an individual.

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

· Power of Attorney for Personal Care, a guardian is a person who has the ability to make decisions about an individual’s personal life should they become mentally incapable.

· Power of Attorney for Property: Lawyers help people with paperwork, as well as make financial decisions.

A Power of Attorney is a legal document that ensures you have someone to make decisions for you if necessary. Tailor Law specializes in wills and drafting powers of attorney.

Our experts can give you more information about wills and estates. You can reach our office at 905-366-0202 or contact us through our website here.

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