Approaching Issues of Capacity

While capacity can be an issue at any age, it is statistically most common among the elderly.  Many people decline in mental and physical ability as they age and capacity becomes a concern.  However, it is a well-known pillar of capacity law that practitioners cannot assume that capacity is an issue.  It is the professional’s responsibility to probe and verify in order to confirm or dispel any concerns surrounding an assessment of capacity. 

An advisable way to approach extracting issues of capacity with an elderly individual is through delicate conversation and encouraging openness.  Though it is important to avoid offending clients who may be uncomfortable, this is a crucial issue to ensure proper estate planning.  Sometimes, apparent symptoms of incapacity can result from cultural differences between client and lawyer.  Other times, apparent cultural issues can mask signs of incapacity.  As a lawyer, information regarding capacity may govern whether or not you can take instructions or act for the person, or whether any will prepared will ultimately be valid. 

See Ian M. Hull, How Lawyers Should Approach Issues of Mental Capacity, The Huffington Post Canada, Jan. 24, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.