What is Legal Competency?

The law uses different definitions of “competency” to decide who is capable of making their own decisions in different areas.  For example, for a person to be considered competent to sign a will, he only needs to have “testamentary capacity.”  This means that he knows “the natural objects of his bounty” (in other words, he understands that he has children or charities to whom he wants to leave his property); that he has a general understanding of the scope and nature of his property; and that he can comprehend the relationship between the two so he can make a rational plan to leave his property to those beneficiaries.  Since this  standard does not require the person to be capable of managing his financial affairs or handling day-to-day business transactions, it is possible that someone who needs to have an attorney-in-fact or a fiduciary handle these matters still has capacity to execute a will.

As if this isn’t confusing enough, the mental health community uses different definitions and has different standards for competency.

The American Bar Association, in conjunction with The American Psychological Association, published An Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. Despite the title, this guide is very readible, and helpful to any professional struggling with the rules and ethical considerations of working with someone whose capacity is declining.

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