A Checklist of Capacity Considerations
The state of California presumes that each person has the mental capacity to manager her or his own affairs. The burden of proof is on the person claiming that you have a lack of capacity. In attempting that proof, the state courts use a statutory list of the elements to be considered in determining whether a person has capacity. While that list is not exhaustive, and there certainly may be other elements to be considered, it is a pretty good starting place, because it sets the minimum bar over which you must leap just to stay out of a court fight over capacity. So, document these elements while you are executing your estate plan and you will probably be home free: (See Probate Code, Section 811(a))
1. Alertness and attention, including, but not limited to, the following:
A. Level of arousal or consciousness (are you awake?)
B. Orientation to time, place, person and situation. (Do you know what day it is, time it is, that you are dealing with an estate plan?)
C. Ability to attend and to concentrate. (Can you carry on a coherent conversation about your family, the estate plan, etc?)
2. Information processing, including, but not limited to, the following:
A. Short and long term memory, including immediate recall (how was traffic coming over, where were you shopping yesterday, how are the kids and their kids)?
B. Ability to understand or communicate with others, either verbally or otherwise. (See above.)
C. Recognition of familiar objects and familiar persons. (Do you have pictures of the family? Tell me about them.)
D. Ability to understand and appreciate quantities. (What does it cost to fuel your car right now?)
E. Ability to reason using abstract concepts. (Trusts separate ownership from beneficial use. How do you understand that?)
F. Ability to plan, organize, and carry out actions in one’s own rational self-interest. (What you want to see happen with your assets when you die?)
G. Ability to reason logically. (If one of your children dies before you do, what would like done with his or her share?)
3. Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
A. Severely disorganized thinking.
B. Hallucinations.
C. Uncontrollable, repetitive, or intrusive thoughts.
4. Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual’s circumstances.
5. A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.
JWH 7-‘08