Mental Capacity: What’s the Standard?
Recently, an woman came to my office because she wanted help her ailing father draft and execute a will from his bed in a nursing home. Unfortunately, I had to tell her that her father most likely lacked the mental capacity to execute a valid will.
To sign a valid will in Texas, the testator (i.e., the person who is signing the will) must be of “sound mind.” To be of sound mind, individuals must meet the following qualifications:
- They must understand the will and the effect of making a will;
- They must know the general nature and extent of their property, the person(s) they wish to give the property to, as well as those people dependent on them for support, and
- They must be able to collect that information and perceive it long enough to form a reasonable judgment.
In Texas, the one wanting to enforce the will bears the burden to prove the testator did not have mental capacity. Because her father had advanced Alzheimer’s disease, it would have been almost impossible for his daughter to prove to the court that he had the mental capacity of one in his “sound mind.”
Powers of Attorney
What does “mental capacity” mean in Texas when one is trying to decide if a Power of Attorney is valid?
Texas courts appear to use a contract standard for Powers of Attorney. Under the contract standard, a person may bind themselves to a contract if they
- Appreciate the effect of their acts;
- Understand the nature and consequences of their acts; and
- Understand the business they are transacting.
The person opposing the Power of Attorney has the burden to prove the signer did not have mental capacity.
Alzheimer’s disease is the most common cause of dementia among older people, with as many as 5 million Americans having the disease.
The possibility of incapacitating dementia is one of the reasons why I encourage my clients to include documents such as financial and medical Powers of Attorney and Advance Directives (also known as “Living Wills”) as part of their estate planning. When an individual really needs the protection of such documents, they may lack the mental capacity to execute them.
To learn more about my estate planning services, call my office at 682-234-2006 to schedule your free initial consultation.