What Does It Mean to Lack Capacity for Conservatorship and Trust and Estate Plan Documents in California? (Part 3 of 3)

In this post we’ll continue to discuss capacity (and incapacity). We’ll discuss capacity rules that overlay all of the rules discussed in the first and second posts of this series.

In the we discussed lack of capacity for managing someone else’s affairs through a conservatorship court proceeding. We also discussed lack of capacity for managing someone else’s affairs in the context of trusts, powers of attorney for financial management (or asset management), and powers of attorney for health care (or advance health care directive). In the we discussed the capacity necessary to sign trusts, wills, powers of attorney for financial management, and powers of attorney for health care.

Overlaid on all of this, California law also provides that there is a rebuttable presumption of capacity. A person lacks capacity if:

1. He or she is “totally without understanding” or is of “unsound mind”;
2. The deficit is substantial in mental function (not merely a diagnosis); and
3. There is a correlation between the deficit(s) and the decision or act in question such that the deficit(s) significantly impair the person’s ability to understand and appreciate the consequences of her actions with regard to the decision or act in question.

A person doesn’t lack capacity if she can communicate and can appreciate and understand the consequences of the decision in question. She must also have none of the deficits. Courts consider the following deficits:

1. Alertness and Attention, including:
   1. Level of Arousal or Consciousness
   2. Orientation to Time, Place, Person, and Situation
   3. Ability to Attend and Concentrate

2. Information Processing, including:
   1. Short- and Long-Term Memory
   2. Ability to Understand and Communicate (even if non-verbal)
   3. Recognition of Familiar Objects and Familiar Persons
   4. Ability to Understand and Appreciate the following:
      1. Quantities
      2. Rights/Duties/Responsibilities Created by or Affected by the Decision or Act
      3. Probable Consequences for the Decisionmaker, and if Appropriate, the Person Affected by the Decision or Act
      4. Significant Risks, Benefits, and Reasonable Alternatives Involved in the Decision or Act
   5. Ability to Reason Using Abstract Concepts
   6. Ability to Plan, Organize, and Carry Out Actions in Own Rational Self Interest
   7. Ability to Reason Logically

3. Thought Processes, including:
   1. Severely Disorganized Thinking
   2. Hallucinations
   3. Delusions
4. Uncontrollable, Repetitive, or Intrusive Thoughts

4. Mood and Affect, including Pervasive/Persistent/Recurring:
   1. Euphoria
   2. Anger
   3. Anxiety
   4. Fear
   5. Panic
   6. Depression
   7. Hopelessness
   8. Despair
   9. Helplessness
   10. Apathy
   11. Indifference

Can a Person’s Physical Limitations Count When Determining Whether She Lacks Capacity?

A person’s physical limitations count when determining whether she lacks capacity. The primary reason is because communication is necessary to be able to conclude that a person has capacity based on most of the requirements and considerations discussed above.

The communication does not need to be traditional verbal communication. Communication can be by eye blinking, hand squeezing, etc.  When assessing a person’s capacity through such non-traditional communication, you must be careful to be sure of clear communication.

Get Help from an Experienced Trusts and Estates Attorney

Making a mistake assessing a person’s capacity regarding conservatorship court proceedings and trust and estate plan documents could be catastrophic. If a person lacking capacity signs a trust or other estate plan documents, then someone may be able to invalidate the trust or other documents after her death (or at another time when these documents are needed) through court litigation.

Hiring an attorney experienced with conservatorship court proceedings and trusts can help avoid a lot of this. In addition, the advice and guidance of an attorney experienced with conservatorship court proceedings and trusts is invaluable for attaining your goals in these types of cases.

At Meinzer Law Firm, P.C., we have over 20 years of experience helping clients achieve their goals in conservatorship and trust cases.  Contact Meinzer Law Firm, P.C., in Torrance to assist you with your Los Angeles County probate court case.