Making a Will for Someone Who Has Already Lost Testamentary Capacity

To make a valid and enforceable will, the person making a will must have what is known as testamentary capacity. In plain terms, it means that the person knows and appreciates when he or she is doing, and the consequences of her actions.

Losing Mental Capacity

Lack of mental capacity is one major reason why wills get challenged in probate court. Family or friends, left out of a will, complain that although left out, they shouldn’t have been left out, because when the will was made, the person making it was ill, confused, had dementia, was incapacitated, or suffered from illness making it impossible for the person to understand the will that he or she created.

But what happens when you know that a family member has no testamentary capacity–that he or she is medically unable to appreciate what he or she is doing–but you want that person to have a will anyway? Or the person has expressed a desire to leave property to family?

You want to fulfill their wishes, and make sure property is left to whom it should be left to, but at the same time, you don’t want to open the door for probate challenges because the person is, admittedly, mentally incapacitated or without testamentary capacity.

Moments of Clarity

Even someone who is mentally incapacitated can make a will during intervals or periods when they are lucid; many people who are mentally incapacitated do have times when they are “less incapacitated,” and they may meet the threshold, even temporarily, to create the will.

Of course, family may benefit from documenting the person through video or medical records, to establish that even though the person had a mental illness or progressive disease, he or she nonetheless, at the time the will was made, was having a moment of clarity or lucidity.

Additionally, remember that the standard is that the person appreciated and understood what the will is doing. That means that people with non-cognitive disabilities, like those who may be blind or deaf, are still legally capable of creating a binding will.

Guardianships and Power of Attorney

For those who really cannot appreciate what they are doing, family may need to seek guardianship, if only for the limited purpose of creating the will.

This can be done through the probate court, with a probate law attorney. This does become more difficult when the person doesn’t want a guardianship, or when he or she believes, falsely, that he is capable of creating his own will.

The best way to deal with mental incapacity is to deal with it before it gets bad enough to affect the person’s will making ability. This can be achieved through a limited power of attorney or springing power of attorney, documents that come into effect when and if the person becomes fully incapacitated, and these documents can avoid the need for a full guardianship.

But the person must agree to these documents; they cannot be compelled on them against their will the way a guardianship can be.

Concerned that illness might affect your probate case, or the enforceability of a will? Call the West Palm Beach probate attorneys at The Law Offices of Larry E. Bray today for help.

Sources:

agingcare.com/articles/competent-to-sign-will-trust-poa-153521.htm

pmc.ncbi.nlm.nih.gov/articles/PMC9122146/