Whats Your Capacity - And Why Should We Care

Author

Kapsak Law Firm, LLC

Posted on

Sep 16, 2012

Book/Edition

Colorado - Boulder County

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One of the most disconcerting events in a persons life is when she or he cannot make decisions any longer or discovers others believe it to be the case. Questions of capacity can come up when we want to create a will or living trust, or when we wish to appoint agents under powers of attorney. Degrees of capacity will also be important considerations since we may be deemed incapable of managing our own finances and thus subject to a guardianship or conservatorship, but still capable of make dispositive documents such as a will or a trust.
Capacity from a legal perspective will be different from a psychological perspective. The legal perspective focuses on the individuals ability to function intellectually, whether or not a person is susceptible to undue influence because of diminished capacity, or whether or not a persons decision is appropriate given the circumstances.
The legal test for capacity required to create or amend a will; or to create, amend, revoke, add property to a revocable trust; or direct the actions of the trustee of a revocable trust;, is generally the same: We should understand: 1) the nature and extent of our property; 2) the persons who are the natural objects of our bounty, and 3) the disposition which we are making of our property. Additionally, we should be capable of 4) appreciating these elements in relation to each other, and 5) forming an orderly desire as to the disposition of our property.
Thus, if we cannot meet any one of the criteria above, and/or if we are laboring under a insane delusional persistent belief in that which has no existence in fact, and which is adhered to against all evidence, and that delusion affects our decisions viz. our will or trust then we do not legally have the capacity to create a will or trust. These tests are not mutually exclusive, and a combination of the above factors may contribute to a conclusion that we are not able to create a valid will or trust. The test for capacity to appoint an agent under a power of attorney is generally considered to be whether or not we understand that we are contracting with someone to act and speak on our behalf.

Editors Note: This article was submitted by Dan Kapsak of Kapsak Law Firm LLC. He may be reached at 303 651-9330 or by email dkapsak@kapsaklaw.com

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Local Services By This Author

Kapsak / Estes LLC

Elder Law 1610 Hover Street, Longmont, Colorado, 80501

The Kapsak Law Firm is devoted to all aspects of estate and business planning, with a special emphasis in elder law issues. Our office provides experienced, compassionate legal counsel in the areas of Estate Planning, Estate and Trust Administration, Guardianships and Conservatorships, Medicaid Planning, and Business Planning.  We are here to serve you and your legal needs with dignity, privacy, and integrity.  With over 40 years combined experience and thousands of happy clients - our attorneys, paralegals, and administrative staff take pride in assisting you with your legal needs with integrity and compassion throughout the process.Mr. Kapsak is a member of the Elder Law, Tax, Probate and Trust Sections of the Colorado and Boulder Bar Associations and is a member of the National Academy of Elder Law Attorneys (NAELA).

Kapsak / Estes LLC

Fiduciary Services 1610 Hover Street, Longmont, Colorado, 80501

The Kapsak Law Firm is devoted to all aspects of estate and business planning, with a special emphasis in elder law issues. Our office provides experienced, compassionate legal counsel in the areas of Estate Planning, Estate and Trust Administration, Guardianships and Conservatorships, Medicaid Planning, and Business Planning.  We are here to serve you and your legal needs with dignity, privacy, and integrity.  With over 40 years combined experience and thousands of happy clients - our attorneys, paralegals, and administrative staff take pride in assisting you with your legal needs with integrity and compassion throughout the process.Mr. Kapsak is a member of the Elder Law, Tax, Probate and Trust Sections of the Colorado and Boulder Bar Associations and is a member of the National Academy of Elder Law Attorneys (NAELA).