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Vermont Estate Planning Blog

Monday, February 12, 2018

Elder Law: Legal Capacity ≠ Memory

Can you remember what you had for breakfast yesterday morning? Or what you wore last Friday?  Details involving routine tasks elude many of us, but does that define our legal capacity?  While that may provide clues, it is not an absolute ingredient in the test for legal capacity.  In fact, there is no “bright line” test for capacity.  It is a grey area and does not equate to passing a memory test.

Accordingly, individuals suffering memory impairment or even diagnosed forms of dementia are not automatically deemed legally incapacitated.  While medical providers are generally concerned with diagnosis and treatment, a legal assessment of capacity focuses on a person’s functional ability to engage in and understand a particular transaction.  It is a more limited determination based upon an isolated event. 

In other words, a client with an Alzheimer’s diagnosis may still have the legal capacity to engage in estate planning.  If he can adequately express that he trusts his wife to make medical decisions and understands the effect of signing an Advance Health Care Directive, he may sign a valid directive.  It is a specific action that can be appreciated in that moment of executing the document.  Is it essential that he later remember the act of signing the document? No—not for legal capacity.  There is no requirement of memory recall.

Oh, and I just remembered—it was oatmeal with maple syrup and brown sugar!

 







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