Levels of Capacity for Estate Planning Documents

Georgia Akers (Associate Judge, Harris County Probate Court No. 3) recently published her article entitled “Mind”ing Your Business: Estate Planning Documents and the Levels of Capacity Required for Execution, 3 Est. Plan. & Community Prop. L.J. 55 (2010). The introduction is below:

In a perfect world, a client visits their attorney and plans for contingencies that may happen as aging takes place. The attorney will draft a group of documents that should cover medical matters as well as financial concerns regarding pre-death and post-death issues.

Documents such as powers of attorney for health care and durable powers of attorney are the most common documents utilized in pre-death estate planning. Post-death estate planning includes wills and trusts.

Clients that execute these documents with the assistance of a probate attorney ensure that their life can continue as they would want even if dementia affects them at a later date. These documents place the management of their body and estate in their control as opposed to a court-controlled management program in the form of a guardianship.

But this is not a perfect world, and many people either delay planning or refuse to face the inevitable. Once a loved one begins to have memory loss, the family assumes that it is too late to plan, and they will be faced with expensive and court-supervised guardianship.

If a person is in the early stages of dementia, estate planning may still be possible depending upon the type of dementia a person has and what type of documents are being considered for signing.

This paper will explore the various documents used in pre-death and post-death estate planning and what level of capacity is necessary to execute such documents.