Our legal system functions with the principle that in order for you to sign any legal document, you must have the necessary mental competence to do so. Health care powers of attorney, DNRs, financial powers of attorneys and trusts are typically classified as contracts, but contractual capacity alone is typically not enough to execute these documents. Your testamentary capacity can be evaluated by several different factors. These include:

  • The ability to understand the impact and general nature of what you are doing by signing the document.
  • You know your family members are other loved ones.
  • You have the ability to understand what you own.
  • You have the ability to understand that you are providing for the distribution of your property after you pass away and who you intend to benefit with it.

It is important for your estate planning attorney to assist you with the process of putting together all the necessary documents to protect you now and into the future. Just because you physically sign a document after being commanded to do so does not necessarily mean that you have a legal capacity to sign that document. If you sign these documents anyway, but you do not have the testamentary capacity to do so, they are not to be classified as legally valid.ThinkstockPhotos-506603586

This presents unique concerns for adult children who are interested in ensuring that their elderly parents, potentially with cognitive problems, have done the necessary steps for estate planning. Consulting with a knowledgeable estate planning attorney is strongly recommended to have a clear view of what to expect.


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