www.CharlesJeromeWare.com. "Here to make a difference."
[This blog is presented for informational purposes only. It is not intended nor designed to be legal advice; nor does it establish an attorney-client relationship. Readers are advised to consult an attorney directly for any legal advice or consultation. The authors appreciate and thank several sources for any information they have provided for this particular blog including, among others, The Elder & Disability Law Center (
www.ed.lc.com), The American Academy of Psychiatry and the Law (
www.jaapl.org), The Alzheimer's Association (
www.alz.org), the NIH National Institute on Aging, Alzheimer's Disease Education and Referral Center, etc.]
I.
LEGAL CAPACITY
As America's elderly population continues to steadily increase, issues of Alzheimer's mental incapacity, and diminished capacity, etc., are becoming more and more common in law firms. The fact is that many clients and their loved ones are not prepared sufficiently to handle and legal and financial consequences of a serious illness such as Alzheimer's disease.
Lawyers and doctors encourage clients (patients), their families and other loved ones recently observed or diagnosed with a serious illness --- particularly an illness that is expected to cause declining mental and physical health --- to both examine and update their legal and financial healthcare arrangements as quickly as possible.
Basic legal and financial instruments such as (I) wills), (ii) living trusts, (iii) advance directives, and (iv) powers of attorney ("POAs"), etc., should be considered and executed to ensure that the person's late-stage or end-of-life legal, financial and healthcare decisions are carried out properly.
Although attorneys are not mental health professionals, we should have a fundamental knowledge or experience base, or competent system in place to decipher whether the client has the "legal capacity" to complete or execute legal transactions.
II.
Some Examples of Deciphering "Legal Capacity" Include:
(1) Legal Standards of Diminished Capacity
Standards of capacity in legal settings vary depending on the transaction (it's mental challenge, complexity, etc.).
(2) Testamentary Capacity
The testator (client) must have the capacity to know the natural object of his/her bounty, to understand the nature and extent of his/her property, and to combine these elements to make a disposition of property according to a rational plan. Capacity is only required at the time the will is executed and does not require that the testator be capable of managing all of his/her affairs or making day-to-day business transactions.
(3) Donative Capacity
Donative capacity is similar to testamentary capacity, except some states have a higher standard, requiring not only that the donor understand the nature and purpose of the gift, but also that the donor knows the gift is irrevocable and will result in a permanent reduction in the donor's assets.
(4) Contractual Capacity
The party must be able to understand the nature and effect of the act and the business being transacted. A higher level of understanding may be needed if the contractual arrangement is complicated.
(5) Capacity to Convey Real Property
The grantor must be able to understand the nature and effect of the act at the time the conveyance is made.
(6) Capacity to Execute a Durable Power of Attorney
The capacity to execute a durable power of attorney is generally the same as contractual capacity, although some courts have held that the standard is similar to testamentary capacity.
(7) Capacity to Make Health Care Decisions
From the Uniform Health Care Decisions Act:
"Capacity" means an individual's ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health-care decision.
Capacity in health care decisions is linked to informed consent, which is required for any health care decision. A person may have capacity to make a treatment decision, but the decision will lack informed consent if it was either involuntary or unknowing.
(8) Capacity to Mediate
The party must understand the nature of the mediation process, who the parties are, the role of the mediator, the parties' relationship to the mediator, and the issues at hand.
(9) Guardianships and Conservatorships
State guardianship and conservatorship laws rely on broad definitions of capacity. There are four standard tests of incapacity: disabling condition, functional behavior as to essential needs, cognitive functioning, and finding that a guardianship is necessary and is the least restrictive alternative. Generally, state law uses some combination of the four tests to determine capacity for guardianship and conservatorship purposes.
(10) Maryland
In the state of Maryland, a person lacks capacity if the court finds by clear and convincing evidence that the person:
(i) lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness or addiction to drugs; AND
(ii) no less restrictive form of intervention is available that is consistent with the person's welfare and safety.
(11) District of Columbia
In the District of Columbia, a person lacks capacity if his/her ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that he/she lacks the capacity to manage all or some of his or her financial resources or to meet all of some essential requirements for his/her physical health, safety, habilitation or therapeutic needs without court-ordered assistance or the appointment of a guardian
(12) Assessment of Capacity
When observing a client for possible signs of diminished capacity, you should keep the following things in mind:
- Focus on decisional abilities, not cooperativeness
- Pay attention to changes over time – history is important
- Beware of ageist stereotypes
- Consider whether mitigating factors, such as stress, grief, Depression, medical issues, education and/or cultural traditions, could explain the behavior
(13) Of course, at all times of legal action (executing documents,
et al.) as well as attorney-client interaction, the attorney must be certain to document his or her observations about the client's "legal" capacity" to understand and participate adequately in the process.
III.
FOR ADDITIONAL INFORMATION:
(a)
Alzheimer’s Disease Education and Referral (ADEAR) Center P.O. Box 8250
Silver Spring, MD 20907-8250
1-800-438-4380 (toll-free)
www.nia.nih.gov/alzheimers
The National Institute on Aging's ADEAR Center offers information and
publications for families, caregivers, and professionals on diagnosis, treatment, patient care, caregiver needs, long-term care, education and training, and research related to Alzheimer's disease. Staff members answer telephone, email, and written requests and make referrals to local and national resources. Visit the ADEAR website to learn more about Alzheimer's and other dementias,
find clinical trials, and
sign up for email updates.
(b)
Eldercare Locator 1-800-677-1116 (toll-free)
www.eldercare.gov
Families often need information about community resources, such as home care, adult day care, and nursing homes. Contact the Eldercare Locator to find these resources in your area. The Eldercare Locator is a service of the Administration on Aging.
(c) National Institute on Aging Information Center P.O. Box 8057
Gaithersburg, MD 20898-8057
1-800-222-2225 (toll-free)
1-800-222-4225 (TTY/toll-free)
www.nia.nih.gov/healthwww.nia.nih.gov/espanol
(d) National Library of Medicine
MedlinePluswww.medlineplus.gov
Search for:
"Advance Directives"
"End-of-Life Issues"
(e) NIHSeniorHealth www.nihseniorhealth.gov
This senior-friendly website from the National Institute on Aging and the National Library of Medicine has health and wellness information for older adults. Special features make it simple to use. For example, you can click on a button to make the type larger.
(f) AARP 601 E Street, NW
Washington, DC 20049
1-888-OUR-AARP (1-888-687-2277; toll-free)
www.aarp.org
(g) Aging with Dignity P.O. Box 1661
Tallahassee, FL 32302-1661
1-888-5WISHES (1-888-594-7437; toll-free)
www.agingwithdignity.org
(h) Alzheimer's Association 225 North Michigan Avenue, Floor 17
Chicago, IL 60601-7633
1-800-272-3900 (toll-free)
1-866-403-3073 (TDD/toll-free)
www.alz.org
(i) Alzheimer's Foundation of America 322 Eighth Avenue, 7th floor
New York, NY 10001
1-866-232-8484 (toll-free)
www.alzfdn.org
(j) American Bar Association Commission on Law and Aging
1050 Connecticut Avenue, NW, Suite 400
Washington, DC 20036
1-202-662-8690
www.americanbar.org/aging
(k) Family Caregiver Alliance 785 Market Street, Suite 750
San Francisco, CA 94103
1-800-445-8106 (toll-free)
www.caregiver.org
(l) National Academy of Elder Law Attorneys 1577 Spring Hill Road, Suite 220
Vienna, VA 22182
1-703-942-5711
www.naela.org
(m) National Association of Professional Geriatric Care Managers 3275 West Ina Road, Suite 130
Tucson, AZ 85741
1-520-881-8008
www.caremanager.org
(n) National Hospice and Palliative Care Organization 1731 King Street
Alexandria, VA 22314
1-800-658-8898 (toll-free)
1-877-658-8896 (Spanish/toll-free)
www.caringinfo.org
(o) Organdonor.govHealth Resources and Services Administration1-877-275-4772 (toll-free)
1-877-489-4772 (TTY/toll-free)
www.organdonor.gov
[Attorney Charles Ware is a principal in the Maryland and Washington, D.C.-based national boutique law firm of Charles Jerome Ware, LLC, Attorneys and Counselors. For an initial courtesy consultation, or questions, call the firm at (410) 720-6129 or (410) 730-5016; or email him at
charlesjeromeware@msn.com]
