HOW TO DETERMINE MENTAL CAPACITY TO SIGN A WILL OR TRUST

Clients often reach out to create a power of attorney, a will, or a trust for themselves and their spouse. Sometimes this happens because they notice that their spouse’s mental coherence or ability to understand something may be deteriorating and they want to make sure that they have all the documents in place in order to avoid complications on continuing to provide care for their spouse or family member.

This bring to question whether someone can actually sign the power of attorney, will, or trust documents. More specifically, do they have the mental capacity to sign such documents and as such whether these documents will be valid if there is a challenge to them.

The CA Probate Code outlines a few test to determine mental capacity, but the first presumption in CA law is that: “all persons have the capacity to make decisions and to be responsible for their acts or decisions” (CA PROB §810(a)). Specifically this means that individuals are presumed to have the capacity and it will be up to the challenging party to prove otherwise.

Next, the Probate Code outlines that a person who has a mental or physical disorder may still be capable of “contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.” (CA PROB §810(b)).

Third, a determination of mental capacity is not solely based on diagnosis, but rather on evidence of deficit in one or more of person’s mental functions. (CA PROB §810(c)). Which means that a diagnosis of dementia or another disorder is generally not enough to determine that someone lacks capacity to sign documents.

Finally, Probate Code §812 outlines the specific test for lack of testamentary capacity, which in summary that they must communicate verbally the decision and understand the following:
(a) The rights, duties, and responsibilities created by, or affected by the decision.
(b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision.
(c) The significant risks, benefits, and reasonable alternatives involved in the decision.
 
As to person’s individual testamentary capacity, that is their capacity to make a will specifically, the California Probate Code outlines the following test:

(1) The individual does not have sufficient mental capacity to be able to do any of the following:
(A) Understand the nature of the testamentary act.
(B) Understand and recollect the nature and situation of the individual’s property.
(C) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental health disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.
(CA PROB §6100.5).  
 
A competent attorney will follow the above tests and independently evaluate the individual before proceeding with preparation of estate planning documents.