Article on Capacity and Estate Planning

Robert Whitman (Professor of Law, University of ConnecticutLaw School) recently published an article entitled, Capacity for Lifetime and Estate Planning, 117 Penn. St. L. Rev.1061 (Spring 2013).  Provided below isthe abstract of his article:

Clientsconsulting with elder and estate planning attorneys for estate planningdocuments will likely receive a “package” of five documents: a will, a trust(revocable or irrevocable), a health care power, a durable power of attorney,and a living will. Although capacity standards have varied for each of theitems in the “package,” an informal survey of American College of Trust andEstate Counsel (ACTEC) members reveals that practitioners do not pay attentionto these distinctions when they create the “package.” Practitioners are eitherunwilling to accept the engagement for lack of competence or willing tooverlook the capacity distinctions when accepting the engagement. This articlethus advocates for a uniform test for capacity when an attorney considerspreparing the “package” for a client.