Legal competency concerns can lead to issues for senior citizens, during both life and death. This is especially true for financial affairs and disputed inheritances. Newbury Park elder law attorneys must be able to determine a senior’s legal competency in both physical and mental areas because of the serious consequences it can have for long-term care planning.
There are many ways that elder law attorneys can determine their clients’ ability to make legal decisions. Because clients need to understand and sign complex legal documents, their ability to understand what they are dealing with has a very real impact on the future of their assets, properties, and even their medical well-being. Elder lawyers typically measure their clients’ level of alertness, how well they understand information, and if there appears to be any level of confusion to determine if the senior is competent enough to make important legal decisions. In the case of a previous relationship with the clients, the elder lawyer may also use prior knowledge of the clients’ values and wishes to determine if the clients’ current wishes seem out of place or may be the result of a diminished mental capacity.
Newbury Park elder law attorneys sometimes see clients who move between lucidity and incompetence, which may change week to week or even day to day. This does not invalidate legal documents signed during this time, though, because if the client was competent at the time of signing, the legal document will be valid. Elder lawyers often write memos after a legal document signing to state why they believe the client was in the right mental state to sign the documents.
Signing with an attorney can provide substantial protection for your will or trust, because the attorney is competent to testify as to their clients’ understanding at the time of signing and use these notes regarding competency.
Sometimes, when the circumstances warrant it, the elder law attorney will recommend the client obtain a neuropsychological exam as to competency, which provides a comprehensive, medical companion as to the client’s ability to understand and sign. Other times, particularly if the plan involves disinheritance or unequal distribution, the attorney may recommend a certificate of independent review, which is where a second, independent attorney meets with the client and certifies that the documents reflect their understanding and wishes.
The issue of legal competency most often comes out during will contests – a family member left without an expected inheritance may claim the individual was incompetent when creating the will, leading to a court challenge. The person contesting the will bears the heavy burden of proving that the individual was incompetent, meaning evidence that the will creator had a diminished mental capacity at the time.
If you have any further questions about legal competency, or if you’re currently involved in a will or trust contest and need help, please contact our Newbury Park elder law attorneys at (805) 409-3878 to schedule an initial consultation.