Legal competency concerns can lead to issues for senior citizens, both during life and after death. Most commonly, disputes regarding a senior’s mental capacity can cause battles over control of his or her financial affairs and the distribution of any inheritance left behind. As such, elder law attorneys must be able to determine a senior’s legal competency in both physical and mental areas because of the serious consequences it can have for estate and long-term care planning.
There are variety of ways that attorneys evaluate their clients’ ability to make legal decisions. This typically involves measuring the clients’ level of alertness, how well they understand information, and if there appears to be any level of confusion when explaining legal options and their consequences. In the case of a previous relationship with the clients, the elder lawyer may also use prior knowledge of the clients’ values and wishes to determine if the clients’ current wishes seem out of place or may be the result of a diminished mental capacity.
Elder law attorneys sometimes see clients who move between lucidity and incompetence, which may change week to week or even day to day. This does not necessarily invalidate legal documents signed during this time, though, because if the client was competent at the time of signing, the legal document will be valid. Lawyers often write memos after a legal document signing to state why they believe the client was in the right mental state to sign the documents.
The issue of legal competency most often comes out during will contests, which typically occurs when a family member challenges the amount of an inheritance they were left on the grounds that the senior was not in his or her right might when making decisions. The person contesting the will contest bears the heavy burden of proving that the individual was incompetent when the document was created. This is something a physician will usually have to attest to, and where the elder law attorney’s notes and memos come into play.
If you have any further questions about legal competency, or if you’re currently involved in a Will Contest and need help, please contact us to schedule an initial consultation.