Could lawyers have greater exposure to legal malpractice claims as the Baby Boom generation, the largest proportion of the U.S. population, starts to age? Unfortunately, the risk of Alzheimer’s and other dementias increases when an individual is age 65 and older. In 2020, the number of people living with Alzheimer’s in the United States was 5.8 million; this number is projected to increase to 13.8 million in 2050. This suggests that attorneys will likely encounter more situations in the future in which they need to assess whether clients have legal capacity to create estate plans and enter into legal transactions.
The law generally presumes that a client has capacity to enter into legal transactions. How to overcome this presumption will depend on the legal transaction at issue and the jurisdiction. This article will focus on how to assess a client’s testamentary capacity to make a will or trust. Additionally, this article will evaluate the requirements to appoint a conservator for an adult and the least restrictive alternatives to such an appointment.
The Restatement of Property provides a widely recognized definition of testamentary capacity among the states: A testator has capacity to make a will if, at the time of the will execution, he or she is capable of knowing and understanding in a general way the nature and extent of his or her property, the natural objects of his or her bounty, and the disposition that he or she is making of that property, and if he or she is capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property.
Many jurisdictions assess the facts and circumstances of each case to determine if testamentary capacity exists. For example, a New Mexico court held in favor of testamentary capacity despite testimony from a neuropsychologist that the decedent had cognitive function issues the week of the will execution because at the time of the will execution, the decedent identified the document he was signing as his will, indicated that he understood the document was to distribute his property, and indicated he was not under the influence of any medication or duress.
Additionally, a California court held that a guardianship does not support a finding of testamentary incapacity without evidence that the decedent’s incompetence continued at the time of the will execution. Further, in California, when a testator has a mental disorder in which there are lucid periods, it is presumed that the decedent executed his or her will during a period of lucidity.
The Uniform Law Commission’s (ULC’s) Uniform Guardianship, Conservatorship and Other Protective Arrangements Act provides that a court may order a conservator for an adult only if it finds by clear and convincing evidence that (1) the adult cannot manage his or her property or financial affairs because he or she cannot receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision-making; (2) a conservatorship is necessary to avoid harm to the adult or “significant dissipation of the property of the adult”; and (3) a conservatorship is the least restrictive method to meet the adult’s demonstrated needs.
Additionally, the court may only grant a conservator powers that are necessary to meet the demonstrated limitations of the adult, nothing greater. The court shall issue orders that “will encourage development of the respondent’s maximum self-determination and independence.” The comments by the ULC indicate that imprudent or wasteful management of property is not sufficient to impose a conservatorship.
In alignment with the ULC, there is a trend among the states to encourage self-determination and independence rather than impose guardianships or conservatorships on adults. Twenty-four jurisdictions have enacted supported decision-making legislation. Supported decision-making allows adults with disabilities to make their own decisions with the help of some assistance (e.g., from individuals acting as supports).
The American Bar Association’s Assessment of Older Adults with Diminished Capacities provides a useful approach for assessing client capacity. A lawyer’s assessment of capacity should consist of an examination of factors affecting a client’s decision-making ability and a determination of what supports and services could strengthen a client’s decision-making ability.
During client meetings, lawyers should aim to make clients as comfortable as possible to increase their decision-making ability. Clients who are not comfortable may not communicate clearly, making it difficult to accurately assess their decision-making ability. Consider conducting client meetings in clients’ homes, so they feel more at ease. When introducing yourself, take time to “break the ice.” Interviewing clients alone is important to build trust and help eliminate the chance of undue influence. But also consider if clients are more comfortable with a support person during the meeting (e.g., a family member or friend). If this is the case, ensure that you speak directly to the clients rather than past them to others. Additionally, letting clients know of the confidentiality of the attorney-client relationship and that anything said during the meeting will not be shared with others is a good idea to build trust and confidence.
When assessing client capacity, it is important to be aware of implicit biases that can arise when dealing with older clients. Some may assume that aging and cognitive impairment go hand-in-hand. But clients may lack decision-making ability for a multitude of other reasons besides cognitive impairment, including hearing or vision loss or even grief from the loss of a loved one.
For clients who are hearing impaired, consider using a handheld hearing amplifier (e.g., Williams Sound’s Pocketalker, Bellman and Symfon’s Mino) to amplify your voice when speaking, and try to minimize background noise. Also, consider providing a follow-up letter to clients summarizing what was discussed during the client meeting to compensate for issues with the client’s hearing.
For clients with vision loss issues, face clients away from bright windows and avoid glossy print materials to accommodate clients with sensitivity to glare. Format printed materials in large-sized font (i.e., 14- or 16-point font) and double-spaced. Also, consider having reading glasses and magnifying glasses available on conference tables for clients.
For clients who may be cognitively impaired, conduct the client meeting during a time of the day when clients are at their peak performance (e.g., mid-morning). Discuss one issue at a time with clients, and let clients know when you are switching the discussion to another topic or issue. Repeat or summarize clients’ answers to questions to ensure correctness of communication.
Some jurisdictions demonstrate that evidence of impaired cognitive function does not preclude testamentary capacity if the impairment did not continue during the time of the will execution. Additionally, a client’s lack of decision-making ability in the realm of conservatorships is not static. Individuals can have increased decision-making ability when provided with the right supports, whether they be personal, technological, or social service support. Following the ULC, almost half of the states have enacted supported decision-making legislation.
This article is based in part on the author’s “Evaluating Capacity: Trusts, Wills, and Conservatorships,” SDCBA for the Record (Feb. 15, 2023).
