The question of competence has become a very big issue in the estate planning/elder law world over the past few years. As the population ages, and awareness of Alzheimer’s and dementia diagnoses grow, more and more adult children are questioning the ability of their elderly parents to make legal and financial decisions. Some children are unhappy with the choices their parents make; but most are simply concerned, and want to ensure their parents are not working in confusion against their own best interests, or being taken advantage of by others.
Estate planning attorneys must assess the competency of every client before they sign any documentation, and most attorneys can confidently make this assessment based on observation, experience, and instinct during the course of interaction; but every once in a while a situation arises that is not so clear, or a family member will express concern about the principal’s ability to understand and sign legal documents.
If you are worried about the competency of your loved one here are a few things to consider:
* Does he have the ability to articulate the reasoning behind a decision?
* Is his state of mind fairly stable, or do his moods and opinions change frequently and without cause?
* Does he appreciate the consequences of any given decision?
* Does he understand when a decision is irreversible?
* Does he recognize the substantive fairness of a transaction?
* Is his current decision-making consistent with his previous lifetime commitments?
In order to determine whether or not a person is competent to sign a will or trust, however, an assessment should be much more focused:
* Does the principal have a clear knowledge of his assets?
* Does he have a full knowledge of the persons to whom the estate is being left?
* Is he able to reasonably formulate and express a plan for the disposition of the estate?
The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to express your concerns to your attorney, and have a mental examination performed by a doctor. Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.