It is common for relatives of an elder individual to contact estate planning attorneys on behalf of an elder loved one and it is just as common for the law firm to pose initial intake questions prior to the first meeting with the attorney. During this initial contact, the caller may be asked if their loved one has capacity to execute their documents. At this point one may be thinking, “What is capacity and how in the world would I know the answer to this question?

First, take solace in the fact that no matter what your response is, an attorney is ethically responsible to conduct his or her own assessment of your loved one’s capacity during his or her representation. Therefore, the accuracy of your response is not crucial and there is no liability if the attorney finds otherwise after meeting with the client. Typically, the attorney is only posing this question so that when he or she meets with your loved one he or she has appropriate background information.

So, what is capacity and how do I know if my loved has it? Capacity is the ability for an individual to make decisions. Like all decisions, there is a broad range of sophistication. For example, the decision to take a shower verses whether to invest in AT&T stock are both decisions but differ greatly in the amount of sophistication involved. When an attorney inquires as to capacity to execute estate planning documents, he or she is specifically asking about testamentary capacity.

Testamentary capacity requires a very low level of sophistication. Further, there is no “rule book” definition or conclusive test to determine it. Instead, lawyers often refer to a checklist of considerations when doing an assessment. However, for the everyday caller, the best way to think of your loved one’s capacity is to ask yourself these two questions:

Does my loved one understand why I am setting up this appointment? Do they generally understand the purpose of the documents the lawyer is drafting?

If the answer is yes to these two considerations, then it is safe to answer this initial question with a “yes”. Understand that your loved one does not need to have a scholarly understanding of each document. She simply needs to have a general awareness of what the documents are and how they will be used.

Finally, testamentary capacity does not need to be permanent in order for your loved one to execute his or her documents. All that is required is for the loved one to have testamentary capacity at the time the documents are explained and executed. This is usually not an issue since it is common practice that each document’s execution be witnessed by impartial third parties.

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