Sometimes, when Oregon residents prepare an estate plan, questions may arise about whether or not they have diminished capacity and if they were therefore competent to make the will. The legal system recognizes the complications of determining legal capacity and may rule a person competent even if they appear to have issues with dementia or similar problems.

Varying capacity

For example, most people who have spent a substantial amount of time with someone who has Alzheimer’s or is recovering from a stroke might be aware that the person’s capacity for understanding may vary from day to day or even throughout the day. Therefore, a person might have the capacity to make a will in the morning but not necessarily in the evening. Determining capacity can be a complex process that may involve the attorney, any witnesses, children or other relatives of the individuals, physicians and social workers.

The standard for capacity

However, family members should be aware that the bar for determining that someone is suffering from diminished capacity to a degree that they cannot make a will is very high. The person only needs to generally understand what property they have, that they are creating an estate plan and who their heirs would typically be. The belief that a person may have lacked capacity in making a will can lead to complications with estate administration and litigation.

The best practice to avoid this is to create an estate plan when capacity is not an issue. The estate plan should then be reviewed regularly and updated as needed, when a person’s assets or family changes. Talking to family members about the plan or even including a document that explains the rationale for the plan can help establish that a person understood what they were doing and why.