We’ve all heard the phrase that a person must of “sound mind” to draw up their Will, Trust or Powers of Attorney, but what does that really mean? Our office gets that question on a regular basis when adult children call to ask about drafting a Will or Trust for their parents or grandparents. One of the first determinations that must be made in such a situation is whether the person making the Will has “testamentary capacity” to do so and is of “sound mind.” A person is of “sound mind” if he or she:
- understands the ordinary affairs of life;
- understands the nature and extent of his or her property;
- knows the persons who are the natural objects of his or her bounty (e.g., his or her closest surviving relatives), and
- understands that, by executing the instrument, her or she is giving property to persons in the manner specified in the instrument.
Boiled down that means that when the Will is signed, the person understands that they were signing a Will, Trust or Power of Attorney, understands what is going on around them, understands the nature of the property they own, and they understood to whom they’re leaving their assets.
This doesn’t mean that a person has to meet the above criteria every minute of the day. For example, Alzheimer’s patients may have ups and downs throughout the day. If they are lucid and can meet the “sound mind” criteria at a certain time of the day, they may very well be legally competent and of “sound mind” to sign a Will or Trust at that particular time, but not later in the day. This is something that should be thoroughly discussed with our office.
Our office will make the sometimes difficult decision as to whether the person creating the Will or Trust is of sound mind. We will speak with them extensively with the above criteria in mind, ask numerous questions to the person to determine their capacity, and even speaks to their doctors, nurses and/or caretakers to get their professional opinion on the person’s competency. Documenting a person’s testamentary capacity can be done by getting a written opinion from their doctor and/or documenting their state by formally videoing the signing and questioning of the person.
Our office has experience in dealing with this issue along with all other Estate Planning issues. Please feel free to call our office to speak to attorney Christopher Cox about your particular situation.