Keep in mind that sometimes your client may seem unable to have the capacity for reversible reasons. For example, something like a urinary tract infection or nutrient deficiency can really affect the cognitive abilities of an older client. You may find that once these problems are resolved, the customer`s cognition improves significantly. In addition, you will find in patients with Alzheimer`s disease that they can be a living and alert person in the morning and completely outside in the late afternoon. This is called sunset. Some customers with dementia will be much more vigilant in a familiar environment than in your office. That`s why I sometimes visit customers in their homes. For example, to sign an act or power of attorney, a person must have “mental faculties.” This means that they need to know what the document is and be able to sign the document for the intended purpose. It`s one thing to know that you`re signing a deed (a document that transfers real estate). It`s another to know that you`re signing a deed that refers to the 150-acre property that has been in the family for over 100 years, rather than the home and property you currently live in. • Finally, it assists in the use and understanding of capacity assessment reports.
• Task-specific factors in the assessment of capacity; and the starting point for determining what can be done and what needs to be done is whether a proposed client has legal capacity. In other words, can the proposed client make their own personal and financial decisions? [O.C.G.A. § 29-4-1(a) and O.C.G.A.§ 29-5-1(a)]. If the answer is yes, then the person is responsible for their own legal decisions. It doesn`t matter if other people agree with the individual`s decisions; The question is whether the individual can make decisions. Paternalism is not a valid basis for bypassing an individual`s decision-making process. Paternalistic terms used to describe incapacity include: a testator possesses testamentary capacity as long as he understands that he executes a document that has his property after his death, is able to remember the property subject to his disposition and the people associated with him by blood and affection, and has sufficient intellect to have a determined and rational desire to dispose of his property. Prine v Blanton, 290 Ga. 307, 308 (1) (720 SE2d 600) (2012) (quotations and punctuation omitted); see OCGA § 53-4-11 (a). The willary capacity of the manufacturer is assessed at the time of execution of the will.
Prine, 290 Ga. to 308 (1). • It includes a worksheet and capacity assessment process One side of the capacity equation is about the client`s abilities, which can change from day to day (or even during the day), depending on the course of illness, fatigue and the effects of medications. On the other hand, some legal activities require a better understanding than others. For example, the capacity required to enter into a contract is greater than that required for the execution of a will. Testamentary capacity is perhaps the easiest to determine. It is simply a matter of whether the client knows who the natural objects of his premium are, the extent of his property and the understanding that the will indicates how his property will be sold after his death. Clients tend to think that you really have to be there to have testamentary capacity, but in reality, testamentary capacity is not a very high standard.
To be able to execute a permanent power of attorney, a client must have contractual capacity. Contractual capacity means that the person has the ability to understand the nature and effect of the action and business that is being conducted. If the continuing power of attorney contains gift powers or if the document signed by the client is a gift of his property, the capacity to donate must also be assessed. The ability to donate requires the client to understand the nature and extent of their property, the natural objects in their premium, and the nature and impact of a gift. In another article, I would like to explain the role of legal capacity when a person wishes to modify their will, revoke their power of attorney or amend another legal document. Legal capacity requirements differ depending on the planned transaction. Testamentary capacity (to prepare a will or trust that has assets in the event of death) requires the will creator to know the general objectives of their premium, understand the nature and scope of their assets, and connect those assets sufficiently to dispose of the assets. The ability to donate (the power to give a gift) requires an understanding of the nature and purpose of the gift, an understanding of the nature and extent of the property to be donated, knowledge of the natural objects of the donor`s bounty, and an understanding of the nature and effect of the gift. Contractual performance is the ability to understand the nature and effect of the action and business being conducted. is the ability to understand the general nature of the health procedure that is approved or refused, as determined in good faith by the applicant`s attending physician based on that physician`s judgment. “Lawyers and doctors should know what, how and by whom is being evaluated. To promote this, clear communication is essential.11 In addition, lawyers and physicians need more professional development,12 which is carried out within and between professions.
The process described in the manual is intended to structure and record the observations that lead to a legal judgment on the client`s capacity, namely: in most cases, it is you who will make the decision on the capacity. In my practice, I ask clients to fill out an important family information form and bring information about their assets when they show up for a first appointment. We also ask for documents such as marriage certificate, birth certificate, etc. We ask for a lot of documentation of this kind because most of my clients come up with questions about Medicaid and Medicaid needs a lot of information from applicants. The result of all this documentation is that I can ask the client about their basic information (date of birth, etc.), assets, income, etc. and independently verify how well the client knows their business. If the client can`t tell me where they bank each month or what their social security is, I know we have capacity issues. A number of medical conditions can alter, impair or eliminate a person`s legal capacity to execute a will, epa or AHD.
Cooperation between lawyers and doctors in the assessment process is therefore particularly important. There are misunderstandings and misunderstandings between lawyers and health professionals about the roles and responsibilities of each individual in conducting these assessments – is legal or medical capacity assessed?1 – which can be exacerbated by inadequate professional training. Since the loss of legal capacity has important consequences, the assessment must be consistent and transparent. At present, there is no nationally recognised system for this process in Australia.2 At present, there is an unsatisfactory ad hoc implementation of various methods suitable for individual practitioners, whether legal or medical. This is a legal, medical, and ethical concern.3 While the standards may seem clear, applying them to some clients can be challenging. The fact that a client does not know the year or the name of the president may mean that they are unable to enter into a contract, but not necessarily that they cannot execute a will or continuing power of attorney. The provision mixes medical, psychological and legal judgments. This must be done by the lawyer (or a judge, in the case of guardianship and curatorship decisions) on the basis of information gathered by the lawyer during interactions with the client, from other sources such as family members and social workers and, where appropriate, from medical staff.