When you may no longer have the Testamentary Capacity to amend your will


Hi. My name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. One of the questions that we field from time-to-time, we'll get calls from individuals who say, "Hey, my mom," or my dad, "has started exhibiting some of the symptoms of Alzheimer's," or maybe is starting to show some signs of dementia, "can we still go back and amend their estate planning documents?" Maybe, you know, one of the sons comes along and says, "Hey, mom said she wanted to do this change or that change and we never got around to it and now she's starting to maybe lose a little bit of her capacity."

That's a tough issue, can you actually go and change the estate planning documents in these situations? The one obvious very lawyerly answer is, "It's much better not to. The best time to do estate planning is when the skies are sunny and blue, everybody's clear in the head." If you think this may be an issue, obviously, get in here and see us as soon as possible.

The next somewhat lawyerly answer also is, "Maybe," or "Depends." One of the the things that it could depend on is the difference between what they call testamentary capacity and contractual capacity. Contractual capacity means that you have like a savvy business mind and you can really understand all of the implications of your decision making and where you sign your name. That's a pretty high standard, contractual capacity. Testamentary capacity could mean you may not understand enough to go into business for yourself, but at very least you understand, "I want this to go to this person." We call that testamentary capacity.

Now, both of those, whether contractual or testamentary capacity, are kind of subject to the analysis of ... There are medical issues at play here. We're just lawyers. You're just a son or a daughter. We really don't understand all the time what the implications of these different symptoms are, and their impact on your parent's decision-making abilities. What we like to do at Clear Counsel Law Group is if there is any doubt as to your parent's capacity at the time that they want to change their estate-planning documents, we will go to their physician and basically get a signed certificate of physician, or some kind of a statement from their doctor that says, "Listen, you know, I understand that mom and dad might not be as clear as they used to be, but in the opinion of this doctor they still have the capacity to be able to make these changes that they envision."

Those are some of the ways that we analyze this big issue. I would not just leave it up to fate, or leave it up to chance. If you think that you or your parents may fall into this category, or have this situation on their hands, please come see us as soon as possible and we'll definitely help you out.

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