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June 25, 2023 5 minutes to read ∙ 1100 words

Determining Whether Your Client Has Testamentary Capacity

By Kerry R. Peck and Hannah Werner

When representing clients with diminished capacity, there is only one rule to provide guidance. Rule 1.14 of the American Bar Association (ABA) Model Rules of Professional Conduct. It tells us:

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

What Is Testamentary Capacity?

Testamentary capacity is defined on page 25 of the ABA’s Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers (2d ed. 2021) as the ability to appreciate the following elements in relation to each other: the nature of the act of a will, the nature and extent of one’s property, the people who are natural objects of one’s bounty, and a distribution scheme to a will. More generally, clients must know what document they are to sign and the implications of signing it.

Another level of capacity is “contractual capacity,” defined as the ability to understand the terms and effect of a contract. Contractual capacity is required for the execution of deeds, inter vivos trusts, and nondurable powers of attorney. Testamentary capacity is less rigid than contractual capacity, as the latter requires clients to understand the potential negative effects of a document they sign and the benefits of alternative documents. To draft a will, one needs testamentary capacity even though the same person must have contractual capacity to draft a trust. The case law appears to indicate that testamentary capacity and contractual capacity are often merged together.

What Can Be Used to Determine Capacity?

When a client’s testamentary capacity is in question, attorneys can look to places such as medical records, family members, friends of the testator, and the testimony of doctors to understand whether the client has the capacity to sign documents on his or her own behalf. Additionally, attorneys can consider and balance these factors set forth in Comment [6] to Model Rule 1.14:

  • the client’s ability to articulate reasoning leading to a decision;
  • variability of state of mind and ability to appreciate consequences of a decision;
  • the substantive fairness of a decision; and
  • the consistency of a decision with the known long-term commitments and values of the client.

These factors can help attorneys determine the true extent of the client’s diminished capacity.

Attorneys should ask questions that the client cannot answer with a simple “yes” or “no” response. Most people want a conversation to continue and will answer affirmatively to questions even if they do not hear what questions were exactly asked. Asking open-ended questions can ensure that a client truly understands the task at hand and does not provide an answer just to continue the conversation.

What If My Client Has Diminished Capacity?

While some with diminished mental capacity cannot make legally binding decisions, others can understand, deliberate on, and reach conclusions about matters impacting their own well-being.

Even so, attorneys can bring in family members to assist in the representation of a client, if necessary. If the client wants family members or other people to participate in discussions, attorney-client privilege is not broken if those individuals sit in on meetings. However, we must look to the clients to make decisions on their own behalf. There is no gray area on whom an attorney represents.

Types of Diminished Capacity

Our clients can suffer from varying degrees of incapacity; some clients are obviously incapacitated, whereas others can hide their mental state better. Specifically, an incapacitated person may have no power to make legally binding decisions, but a client lacking legal competence can understand and reach conclusions about matters affecting their own well-being.

Therefore, the law recognizes intermediate degrees of incompetence. It is important that, as attorneys, we understand that there are varying degrees of capacity, and it is not a stagnant condition; people can handle certain situations better than others.

What Can Impact Capacity?

Testamentary capacity can be impacted by: Alzheimer’s disease or another type of dementia, alcohol or substance abuse, and mental health disorders. Attorneys must know and understand these impacts, as we hope to question the testamentary capacity of clients ourselves before a court or opposing side.

This is not to say that everyone with Alzheimer’s disease, alcohol or substance abuse, or mental health disorders lacks testamentary capacity. Individuals with these diseases can have lucid moments and have the capacity to create binding documents despite being incapacitated the next day. It is important that an attorney notes a client’s mental capacity at the time of discussing and signing documents.

Conclusion

Attorneys must practice extreme care when completing work on behalf of a client with diminished testamentary capacity. We must ensure that everything is documented in case something is later disputed after signing or family members question how their loved one was during an attorney-client meeting. But most of all, we must remember that clients with diminished capacity deserve our full and complete attention on their matter, and our work is not sacrificed based on someone’s capacity.

The ABA book Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families provides additional information regarding how an attorney can best treat clients with diminished capacity, how to determine whether someone can make decisions for themselves, and the various life events that can impact a client’s testamentary capacity.

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    Kerry R. Peck

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    Kerry R. Peck is the managing partner of the Chicago elder law firm Peck Ritchey, LLC. In 2022 he was appointed chair of the newly created Illinois Supreme Court Commission on Elder Law. He is the past president of the Chicago Bar Association. His clients include families, hospitals, banks, the State of Illinois, County of Cook, and City of Chicago.

    Hannah Werner

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    Hannah Werner is a third-year law student at Chicago-Kent College of Law.

    Published in GPSolo eReport, Volume 12, Number 11, June 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.