As the autumn leaves have mostly fallen off the tree, and most of us have struggled to burn off all the calories we gained over the Thanksgiving weekend, October will soon give way to November. That means one thing for many of us in the legal profession: It is “Make a Will” month? Last year, I wrote a blog on why you should make your will and your power of attorney (POA). Many people ask me: is it too soon to make my will or POA? Especially if they feel fine and thoughts of their mortality are far, far away?
However, it is 2020, and if this “unique” year has taught us anything, we should never take anything for granted, especially our health and the health of our loved ones. So, to answer the question above: although it may seem too earlier to do your will and POA, if you wait too long, it may be too late. Let me explain.
To do your will, you need to have “testamentary capacity.” This means that you must be mentally capable of instructing someone (presumably a lawyer) to prepare your will and sign the will. The same goes for POAs. As lawyers, we have special talents, but we are not medical professionals. Although we cannot make a medical determination that someone is incapable of caring for themselves or managing their property, we are required to establish that a client who instructs us to prepare and witness their will or POA “appears to be” mentally competent. That is all we can do.
So, how do lawyers do this? There is no exact “script” that any two lawyers use, but we need to ask a series of probing questions of the client to establish a threshold of a person’s mental capacity. We also do this twice: once, when we meet the client to get instructions to prepare the document, and next, when it is time for us to witness the client signing the document. Generally, when I meet with a client who wants me to prepare their will or POA, I go through a long, multi-page checklist of data collection, asking them questions about themselves, their family, their assets, their debts. Finally, I get to their instructions for how they want me to prepare the document. A lot of the information is not necessarily going to be directly reflected in the document I prepare (will or POA), but it alerts to me whether the client is mentally able to tell me about three things:
- Who they are;
- What they have & do not have; and,
- What they want & do not want.
As well as ascertaining their capacity, I advise them that I can be a repository of their financial information if/when their executor or named attorney needs a starting point on establishing what the client owns, where they bank, how much money they are expected to handle, etc.
After I prepare the draft document, I send it to the client via email to review and approve the accuracy of names and instructions. (I make sure to mark it “DRAFT,” so there is no risk to the client signing it accidentally). Presuming it is properly drafted, I then set up a time to meet with the client, either in person or virtually, to go over with them the legalities of explaining the document, initialing the pages of the document, and witnesses their signature. It is at this time, before I undertake these tasks, that I once again ask the client a series of questions to establish four critical points of reference in establishing capacity:
- Does the client know who they are?
- Does the client know where they are?
- Does the client know what time period they are in?
- Does the client know why they are meeting with me?
(There are other questions that I ask to satisfy myself that they are no under any undue pressure or influence to sign the document, but that is the topic of a different blog for another day).
If I am satisfied that the client can adequately answer all four questions, then I have determined that they have the necessary testamentary capacity to sign the document or documents.
Sadly, just in the past two years since my return to private practice, I had come upon several cases when the client was no longer capable of answering those questions. I had the difficult task of advising them and their loved ones that it is too late for the client to do their will and POA regrettably.
As a lawyer, not only do I ask the necessary questions, I also record the client’s answers, just in case someone in the future questions whether the client had the necessary mental capacity to instruct me or sign the document. This usually happens if someone is excluded from the will or not given the assignment of being a named attorney or executor.
Finally, a word of warning. The area of estate litigation is bursting at the seams with claims by loved ones and not-so-loved ones, making allegations in court that they were wrongly left out of the will or the POA. As I said above, as a lawyer, if questioned, I would refer to my notes to support my position as to how I established capacity. As a non-lawyer, if you or a loved one does their own will or POA, or if you witness a person’s will or POA, you may not be able to satisfy a court that you knew that the person had the necessary capacity. Sadly, by the time the issue is brought up, it may be too late to do anything about it.