How Is Capacity Determined?

June 20, 2019

The concept of mental capacity comes into play in relation to a variety of issues related to estate planning. A person who lacks mental capacity cannot create a legally valid Will or any other estate planning documents such as a Power of Attorney, nor can they make any valid changes to an already existing estate plan. The lack of mental capacity of a testator (a person who has made a Will) is also one of the primary reasons the contents of a Will can be challenged in probate court.

If you are a close family member of an elderly person, you may need to help them create or update their estate plan. To be able to do so effectively, however, you must have a good understanding of how Florida defines mental capacity and in what circumstances a person can be declared incapacitated. In this article, we present a brief overview of this matter.

Incapacity in Florida: A Legal Definition

The issue of incapacity is regulated by Florida Statute Section 744.102 (12), which defines an incapacitated person as “a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”

Another important legal term related to the issue of mental capacity that has a bearing on estate planning matters is “sound mind.” For example, to be able to create a valid Will, the testator needs to be of “sound mind.” In general terms, this concept describes a person’s mental ability to comprehend the contents and consequences of a Will.

How Mental Capacity Is Determined

Before fulfilling an elderly person’s request to create or update an estate plan, an experienced estate planning lawyer may use a legal questionnaire designed to help ascertain if that person has a sufficient understanding of the issues in question and the capacity to make related decisions. If they believe that the person doesn’t have such mental capacity, they may suggest that close family members pursue a guardianship. This legal arrangement consists of appointing a guardian who will manage the incapacitated person’s legal and financial affairs, including those related to estate planning.

However, whether a person truly possesses mental capacity required to make legally valid estate planning decisions – or if they are incapacitated and require a guardian – is a matter that must be “judicially determined.” This means that only the court can make such a determination.

To determine mental capacity, a court will appoint a 3-person examining committee comprised of qualified professionals such as psychologists, physicians, or social workers. Through a series of evaluations, the committee will assess whether the person is able to make informed decisions regarding their rights, property, and other pertinent matters. The committee will then file a report with the court containing recommendations with regards to the person’s ability to retain his or her rights. The court will subsequently hold a hearing and make a final decision on the person’s mental capacity.

What can you do if you are a family member of an elderly person who needs to update their estate plan but you suspect they may not have the mental capacity to do so? Your first action should be to contact an experienced estate planning attorney to obtain professional advice. Our legal team at Schlegel Livingston, LLC will gladly provide assistance with regard to incapacity and guardianships. We will also answer any other estate planning questions that you may have.