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Determining Capacity

Determining Legal Capacity California

In our society, when young men and women reach the age of 18, they are deemed as having attained the level of maturity necessary to be responsible for their own well-being, and thus make decisions for themselves. This is known as “competence,” or more accurately, “legal capacity.” Legal capacity means that someone has the mental faculties necessary to make decisions according to one’s needs, desires, opinions, concerns, and so on.

Capacity is a serious matter, which is why not everyone is considered competent. For instance, when a young person has severe disabilities, it may be necessary to place them in a limited conservatorship to ensure that they are cared for.

Competence can be a fluid thing. Even people in limited conservatorships may hold many of their rights, and be deemed to make decisions on all but a limited, specific subset of matters. But for the majority of people, from the age of 18 on, they are allowed to make personal and legal decisions on their own behalf in all regards.

Legal capacity has a very specific, legal mean, and different acts require different levels of capacity.

In the State of California, there are roughly three forms or levels of capacity which are necessary to make various decisions.

In order for a person to be deemed capable of leaving a will—which has a lower threshold than being capable of entering into a contract—which is known as “testamentary capacity,” a person must be:

  • Able to understand the nature of a will and its significance.
  • Capable of accurately remember information about their property.
  • Able to recall and understand their relationship with their descendants and other parties affected by the will.
  • Free of hallucinations or delusions that affect their decision-making ability.

For a person to make medical decisions, the state requires that a person fulfill a three-pronged requirement:

  1. That they can respond in an intelligent, comprehending fashion to questions.
  2. They can participate in the treatment process in a thoughtful, rational manner.
  3. They can understand the nature of their illness and its severity, the nature of their treatment, the risk and probability of success, the consequences of not receiving treatment, and the value and risks of alternative options.

Then there is the highest level of capacity, the capacity to contract. While some California courts have begun to apply the testamentary capacity standard to living trusts—as these are often used as essentially a replacement for wills—in just about all other contexts, in order for a person to enter into a contract, they must retain a number of cognitive abilities, including:

  • An understanding of when and where they are.
  • The ability to concentrate and reason in a logical fashion.
  • Being able to reason in an abstract manner.
  • Being able to plan in an organized manner.
  • The ability to act in one’s own self-interest.
  • The ability to communicate with and understand other people.
  • The capacity for short-term and long-term memory.
  • Being able to recognize people and familiar objects.
  • Understanding the basics of numbers, quantities, etc.

Adults are often assumed to have testamentary capacity, but illness and old age can take a toll, and inevitably the question is raised as to whether someone still has the cognizance necessary to act on their own behalf.

Having someone declared incompetent.

Family members often eye their aging relatives with a certain degree of concern and fear, and for good reason. It is not uncommon for individuals to coerce elderly individuals into modifying their trusts or even grant power of attorney, resulting in impoverishment. This is why it sometimes becomes necessary to have a person’s legal capacity evaluated for their own protection.

If your loved one is willing, it’s best to work with an estate lawyer to establish a living trust for the purpose of incapacity planning, and possibly to establish a power of attorney as well. It’s always best to work with a relative whenever possible, rather than acting by force.

But if there is concern that someone is attempting to take advantage of them, and it’s necessary to block your loved one from making potentially dangerous choices, the best start is to file a petition with your local probate court to be appointed as a legal guardian over the loved one.

However, at this point you will need to work with an attorney who is familiar with conservatorships and other forms of guardianship. They will be able to guide you through the process of the incompetency proceedings, and help you secure the necessary psychological evaluation.

This process is complex, and requires expert legal advice. If you are facing a situation such as the one described above, we can help you protect the well-being of your loved one.

For more information, call Toeppen & Grevious at (916) 400-4516, or send us an appointment request and we will be in touch with you shortly.