Experienced Attorneys Who Will Fight For You

The role of mental capacity when signing estate planning documents

On Behalf of | Oct 4, 2023 | Estate Planning

Mental capacity is of paramount importance when it comes to estate planning. Simply put, it involves the ability to clearly make decisions while also understanding the effects of their actions when it comes to drafting essential documents and understanding the impact of their actions and how they affect their assets.

Mental capacity is defined as the ability to understand the document’s content that is about to be signed, including the potential outcomes and any consequences.

Difficult decisions and sinister actions

Any level of compromised mental capacity in putting pen to paper, not to mention making any changes as time goes on, could result in will contests. Even more sinister actions can occur, specifically family members and others who take advantage of the state of deterioration. They can force their loved one to write or sign something they simply can’t comprehend.

Notaries, in particular, should understand the signs that can take the form of confusion or the ability to communicate. Lacking those abilities should raise red flags, considering that most notaries are likely incapable of diagnosing decreased capacity.

Additional challenges

Signing documents in hospitals presents significant challenges for notaries. No one should force those in highly fragile states to sign such important documents. However, notaries must balance those concerns with the need to move forward to secure a formal and enforceable document.

Some family members will insist on moving forward while being aware of confusion if not outright impairment. Many notaries can reach out to a staff member or doctor at the hospital about the signer’s condition and allow them to make their own professional conclusions.

Witnessing a loved one who is showing signs of declining mental capacity presents emotional challenges and legal complexities when it comes to making important decisions for the future.

Recent Posts



RSS Feed

FindLaw Network