Clients that speak to estate planning attorneys often receive a “package” of estate planning documents, including a will, a trust, a health care proxy, a durable power of attorney, and an advance directive. However, many attorneys fail to grasp the fact that these documents require different levels of capacity to ensure their validity or they choose to ignore the distinctions. One possible solution to this to have a uniform test for capacity when attorneys draft a package for their clients.
See Robert Whitman, Capacity For Lifetime and Estate Planning, 117 Penn St. L. Rev. 1061 (2013).
Special thanks to Katherine Pearson (Professor of Law, Penn State University – The Dickinson School of Law) for bringing this article to my attention.
