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Preparing For The Unexpected: Mental Incapacity And Estate Planning

Posted by Aubrey Carew Sizer | Jul 25, 2022

Estate planning often includes a Last Will and Testament (will), living will, power-of-attorney, trust, and other legal documents. Many times, estate disputes arise because one of the deceased's heirs or beneficiaries contests the validity of a will or other document based on the author's lack of mental capacity. It is not uncommon for people to lose some of their faculties as they age, and cognitive decline is a common consequence of aging. Estate planners may establish the testamentary capacity of their clients. If you need assistance planning your own estate or assisting a loved one who may have diminished mental capacity, then you may consider consulting an experienced estate planning lawyer. The legal team at The Law Office of Aubrey Carew Sizer PLLC can help. Call our compassionate estate planning attorneys today at (571) 403-2619 for more information about mental capacity and estate planning.

What Is Testamentary Capacity?

The legal definition of testamentary capacity is an individual's ability capacity to legally understand the estate planning documents they are signing. However, testamentary capacity is not a black and white concept; there is some gray area that can lead to an estate dispute.

An individual's competency may be challenged in court, and if the challenge is successful, then the estate planning documents will be deemed invalid. Instead of the asset distribution detailed in the will or trust, the assets of the estate will be distributed according to probate law. Many times, this distribution is not what has been stipulated in the estate planning documents.

Therefore, an estate planning lawyer will first determine whether their client's testamentary capacity will be an issue. It is important to note that testamentary capacity does not refer to a mental illness but rather to three factors:

  • The ability of the individual to understand the documents
  • The presence of a sound mind
  • Absence of a cognitive deficit

What is Considered a Sound Mind?

The concept of a sound mind with regard to making estate planning decisions and signing legal documents requires the estate holder to be competent at the time that the estate planning documents were signed. Sometimes, medication or an illness may render someone incompetent for a brief period, but they may be competent later. In other cases, the individual could be legally competent when the will is signed but become incompetent just a short time later.

Therefore, an estate planning attorney has a duty to ensure that their client is competent when the relevant documents are planned and signed. Evaluations of mental capacity may be made by a health care provider or by the court. But, the input of lawyers, family members, guardians, or other advisors may play a significant role in determining whether there is a need for this type of assessment.

For example, a family member may note signs of dementia or cognitive decline and may pursue guardianship for their loved one to ensure their financial and personal needs are protected. Unfortunately, in some instances, the family member may determine that a formal assessment of the person's testamentary capacity is necessary.

Can Lack of Testamentary Capacity Make Someone Unable to Plan Their Estate?

If an individual is determined to lack testamentary capacity, that does not necessarily mean that they may not have a voice in the planning of their estate. What it does indicate is that certain steps must be completed to ensure the person's protection from undue influence and to understand the impact of their estate planning decisions.

For example, a legal conservator or guardian may be appointed by the court to represent the person with diminished testamentary capacity and ensure that a legal signature is in place on all the documents. This ensures that the estate holder's wishes will be carried out. Ensuring mental capacity is a critical part of estate planning.

Estate Planning Can Protect Legal Rights in Cases of Mental Incapacity

There are several steps that people can take to prepare for the unexpected with regard to mental incapacity and estate planning. Estate planning is not just writing a will or establishing a trust. It also entails preparing for potential problems later in life. A complete estate plan allows individuals to solve problems before they occur, should they experience cognitive decline or otherwise become unable to advocate for themselves. For example, an estate plan can include:

  • Durable Power of Attorney for property and finances
  • Power of Attorney for Healthcare document
  • Living Will, assigning a person to make end-of-life decisions for another

These documents may not just protect an individual in cases of old age. If a person is involved in a severe car accident, for example, they may have specific health care and treatment preferences. Having a living will or power of attorney for healthcare documents in place ensures that an individual is not placed on life support, for example, and that their treatment preferences are respected.

This part of estate planning may help families avoid guardianship or conservatorship hearings for an individual and may reduce arguments between family members as to how best to care for their loved one.

What Effect Does Mental Health Have on Estate Planning?

An individual with a mental illness may not have reduced testamentary capacity – these are not mutually exclusive. However, some forms of mental illness may have an impact on an individual's ability to make sound financial and legal decisions.

Some people may have concerns about their own ability to care for themselves should their mental health worsen. They may opt to create a revocable trust, transferring assets and property into it, to care for themselves if they cannot work.

Ensuring Your Wishes Throughout the Estate Planning Process

Mental incapacity and estate planning can be legally challenging and complex to navigate. Often, an estate planning attorney will take steps to ensure their client is of sound mind, which can include having witnesses present when estate planning documents are signed or even videoing the signing. If you have not made arrangements for your estate, The Law Office of Aubrey Carew Sizer PLLC can help you review your options to ensure that your wishes are honored and your assets are protected. Call us today at (571) 403-2619 for more information about ensuring mental capacity for estate planning.

About the Author

Aubrey Carew Sizer

Aubrey Carew Sizer, Esquire, is the Principal Attorney of The Law Office of Aubrey Carew Sizer PLLC, a Northern Virginia law firm providing representation for Wills, Trusts, and Estate Planning, Long-Term Care Planning, Guardianship and Conservatorship, Special Needs Planning for the Disabled, and Probate, Estate and Trust Administration.


The Law Office of Aubrey Carew Sizer PLLC provides customized and affordable estate planning (including wills, living trusts, powers of attorney, and advance medical directives); elder law services (including long-term care planning, special needs planning for the disabled, and guardianships and conservatorships); probate, estate and trust administration (including advising executors and administrators of estates about post-mortem planning and the local probate process in Virginia), as well as general aging and disability advice in Northern Virginia, including but not limited to Arlington, Alexandria, Ashburn, Bristow, Burke, Centreville, Chantilly, Gainesville, Fairfax, Falls Church, Haymarket, Herndon, Leesburg, Manassas, Manassas Park, Reston, Springfield, Sterling, and throughout Loudoun, Prince William, and Fairfax counties.