Skip to Content
chevron-left chevron-right chevron-up chevron-right chevron-left arrow-back star phone quote checkbox-checked search wrench info shield play connection mobile coin-dollar spoon-knife ticket pushpin location gift fire feed bubbles home heart calendar price-tag credit-card clock envelop facebook instagram twitter youtube pinterest yelp google reddit linkedin envelope bbb pinterest homeadvisor angies

Lack of Mental Capacity within Estate Planning in Flordia

People generally create wills and trusts to avoid probate court and ensure their wishes are met regarding who inherits their assets and when. However, some people wait too long to start estate planning. By the time an illness, stroke, or other incident renders them mentally unfit, it may be too late to create an estate plan on their own. This is where the question of “testamentary capacity” comes into play.

What is Testamentary Capacity?

A person’s testamentary capacity is their legal and mental ability to execute or alter an estate plan. Most states have both an age requirement (usually 18 years old) and a “sound mind” requirement to sign a will.

If an estate owner’s mental competency is successfully challenged in court, the estate plan becomes invalid and the assets are distributed under state probate law. Probate is a time-consuming, expensive process, and it often distributes money and belongings in ways the estate owner never intended.

How is Mental Capacity Determined?

Deciding whether someone has the proper mental capacity to sign a will has a lot of grey areas. Still, it’s critical for an estate planning attorney to feel confident about a client’s mental competency before working with them to avoid challenges in court.

Be aware that lack of mental capacity is not determined by age, illness, or disease alone. Rather, in most jurisdictions, it comes down to some combination these four categories:

  • Alertness and attention: Limited consciousness; a weak awareness of time, place, and situation; and an inability to concentrate are signs of poor mental capacity.
  • Information processing: Poor short- or long-term memory; the inability to communicate with or understand others; failure to recognize family members or familiar objects; limited reasoning skills; and deficits in planning, organizing, and executing actions in one’s own self-interest indicate a lack of mental competency.
  • Thought processing: Severely disorganized thinking, hallucinations, delusions, and unwanted or uncontrollable thoughts point to limited mental capacity.
  • The ability to modulate mood and effect: Extreme mood swings and emotions that don’t align with the circumstances shows that someone may be incapable of making rational decisions about their estate.

If a person fits into one or more of these categories, it doesn’t automatically mean they lack the mental capacity to sign estate planning documents. The frequency, severity, and duration of any mental impairment are also determining factors.

When Does Mental Capacity Matter?

A person’s mental competency only matters when they sign a will. As long as they are deemed legally competent when executing a will, it doesn’t matter if they lose mental capacity a short time later. This means attorneys are only obligated to assure an estate owner’s competency when signing documents. There’s no need to follow up and reconsider their mental capacity at any other time.

Who Determines Mental Capacity?

In general, licensed mental health professionals conduct competency evaluations. In situations of questionable mental capacity, testing can be done prior to drafting a will or trust to provide evidence in case these documents are challenged in court.

Family members, attorneys, and other advisors play a critical role in determining the need for competency evaluations. For instance, a son or daughter may notice their parent having difficulty remembering people’s names or keeping appointments, indicating memory loss. An attorney may also observe that their client seems confused about the terms of their will and can’t clearly communicate their desires or make decisions on their own. In such cases, it’s important for the attorney not to continue the estate planning process.

What Happens if an Estate Holder Lacks Mental Capacity?

Determining mental incompetency does not prevent an estate holder from having an estate plan. They may even get to have a say in their plan. Additional steps must simply be taken to protect the estate holder and help them make sound decisions. This may include appointing a guardian, conservator, or legal representative to work with the estate holder and ensure the final documents feature a legal signature.

Begin Your Estate Plan Today

If you or a loved one is worried about a lack of mental capacity, rest assured that it’s still possible to create an estate plan and pass on your legacy. Seek help from Generational Strategies Group to get the process started. We’re here to help you preserve, protect, and perpetuate a lifetime of hard work onto the people you care about most. To work with our estate planning specialists, please call us at (239) 352-4111. We have over 30 years of experience serving families in Naples and Fort Myers, FL.