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3 Misconceptions about Capacity in Estate Planning

People often get three things wrong when it comes to capacity.

Have you ever been concerned about a parent or older relative whose judgments seems to be impaired? Maybe it’s your dad. He’s fallen for some scams recently and believes those callers with the foreign accents who say they’re from the IRS are serious about hauling him off to jail.

Maybe it’s your mother. She swears she has no difficulties driving even though you find yourself stomping the imaginary brake on the floor when you ride with her. Those fender benders she was in? They were the other guy’s fault.

Maybe it’s your spouse. He’s convinced the people next door are terrorists.

When these things happen, it’s natural to wonder whether loved ones are competent to manage their own affairs. When clients come to me with concerns about bad decisions made by elderly loved ones, the first step is to assess whether the person has the “capacity” to make good decisions. In my work with clients, I’ve learned that people often have misconceptions about capacity. This article discusses the three most common.

Misconception #1: Decision-making capacity and legal competency are the same.

Though the terms are often used interchangeably, they are not the same. Competence is determined by a court of law. A person is ruled incompetent if he or she is unable to make valid decisions. If that’s the case, the court appoints a guardian or conservator.

Capacity, on the other hand, is often considered from a clinical perspective (i.e. by doctors, psychologists, and others) versus a legal perspective (i.e. by lawyers, judges, and courts).

Capacity is the ability to make a rational decision based upon all relevant facts and considerations. The definition of capacity varies depending on the complexity of the decision being made. For instance, you need a different level of capacity to choose an item from a restaurant menu than you do when you’re deciding to give away your house.

In general, a person with the capacity to make good decisions can understand the benefits, risks, and alternatives under consideration, and is able to make and communicate a decision. The more complex the decision, the more capacity needed. For instance, the capacity to create a will is defined as knowing the natural objects of his/her bounty, to understand the nature and extent of his/her property and to interrelate these elements sufficiently to make a disposition of property according to a rational plan.  If you make a gift during your life, you must also understand the economic implications of that gift. Capacity is an issue in healthcare decision-making, too. A person with the capacity to make good decisions can understand the benefits, risks, and alternatives of care options under consideration, and is able to make and communicate a decision.

Misconception #2: Decision-making capacity is an all-or-nothing phenomenon.

People sometimes assume that decisional capacity is an “all-or-nothing” type of ability: either you have it, or you don’t. This is sometimes framed as whether a person is “competent” or “incompetent” to manage affairs. But the reality is more complex. The lack of capacity to make one decision does not necessarily mean lack of capacity to make any decision. A person’s capacity should be evaluated considering a specific decision to be made.

Some decisions are complex and require a person to consider and weigh multiple pieces of information. For instance, the decision to sell one’s home, which may involve consideration of tax and estate consequences, is often quite complex. Other decisions may be relatively straightforward. For this reason, it is possible for a person to lack capacity to make certain types of decisions while retaining the capacity to make simpler decisions.

Misconception #3: Capacity or incapacity is permanent.

Capacity can fluctuate, depending on a person’s health circumstances. For instance, most people are groggy immediately after surgery. In this state, most lack the capacity to address anything more than a very simple decision. But, their decisional capacity normally improves as the person recovers from the surgery.

Other situational factors can affect capacity, including stress, grief, pain, infection, sensory impairment, literacy, cultural factors, drugs, dehydration, malnutrition, delirium, disorientation, and depression. It’s vital that the clinician making the determination screen out these factors.

People with vulnerable brains, such as those with a diagnosis of Alzheimer’s or another dementia, often experience fluctuations in capacity. When they are feeling well, their mental abilities might be good enough for them to have capacity for many decisions. But if they are sick, or stressed, their capacity to make decisions can be greatly diminished.

For these reasons, before concluding that a person lacks capacity for a given decision or task, every effort should be made to improve the opportunity for the person to understand the issue if possible. Such improvements may be possible by treating an underlying health problem, or by mitigating any hearing or vision problems.

Do you have questions about the capacity of an elderly loved one? Do you need help updating documents in your estate plan? Johnson McGinnis Elder Care Law & Estate Planning is here for you. Just give us a call at 615.824.2571 to schedule your confidential consultation.


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