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Determining a lack of capacity

Many in Los Angeles will often joke that a person's mind is the first thing to go. However, mental illness and incapacity is no laughing matter, as they can render countless people incapable of caring for themselves. One of the major issues encountered in estate planning is the capacity of one to make decisions regarding the management of his or her property and assets. A common claim heard in estate disputes is that a person's lack of capacity may open him or herself to undue influence. 

Diminishing mental faculties is a problem many may encounter in their advancing years. The World Guardianship Congress lists schizophrenia and dementia as being among the most common forms of mental illness diagnosed in the U.S. One might argue that those suffering from any of these ailments lacks the ability to comprehend important estate planning matters. Fortunately, the law has established guidelines to determine a lack of capacity. 

According the Section 812 of the California Probate Code, one is determined to have a lack capacity if he or she is unable to understand and appreciate any of the following elements: 

  • Any of the rights and responsibilities his or her personal decisions imposes on him or herself as well as others
  • The consequences he or she (and others) may face as a result of his or her decisions
  • The risks and benefits that come with a decision, as well as any reasonable alternatives 

Proving a lack of capacity retroactively once an estate has gone to probate may be difficult. The testimony of family, friends and caretakers or medical records may be used to support one's suspicions. If those suspicions are found to have legal merit, then the stipulations of one's estate planning documents may be called into question. 


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