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What is testamentary capacity?

Shannon Miller, a Gainesville elder law attorney, discusses testamentary capacity. How does the law determine if a person is in the right state of mind to consider and draft a will? How does she, as an experienced attorney, ensure that clients are making the right decisions regarding their assets?

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“When we are talking about testamentary capacity as it relates to a durable power of attorney, that’s something that we have to assess all the time. A durable power of attorney, as you may know, is where someone gives authority to make financial decisions to someone else. If someone has already said, ‘I want my son, Frank, to have my authority to make financial decisions,’ you make Frank your attorney-in-fact is what that’s called. Then later, we need to update that power of attorney because we didn’t include certain provisions that are now required under Florida’s laws, such as: The new power of attorney statute that was enacted in October of 2011 has a whole bunch of new requirements for execution of powers of attorney.

If we had an old power of attorney and we wanted to make sure we updated it to include those new provisions, the testamentary capacity required for the execution of that document is going to be pretty low because they already have a history of wanting that individual to make those decisions. Typically what will happen in that case is, I will go in and I will meet with the person and I will say, ‘You still want Frank to manage your affairs?’ If they say yes and I say, ‘Now, there are some new things that we have to do. These are some new provisions that are going to be in there,’ and if they have a general understanding that yes, they want Frank to manage their affairs, and they want him to do these new things that are now called super powers, they want to make sure that they include him for that.

That testamentary capacity is going to be very low. I may go in and meet with a client in the morning and they may be having a bad day and they may not have that testamentary capacity. However, later after lunch, after they have had a nap and they are having a lucid interval, which means that they are having a time period where they can understand me and they can make those decisions to give Frank that authority, then we may go ahead and do the execution at that time.

It’s really an assessment as to whether or not they understand the value of their assets and what they are giving away. A durable power of attorney has a lower testamentary capacity. On the other hand, if we are talking about the execution of a will or trust, that testamentary capacity is probably going to be a little bit higher because not only do they have to understand what their stuff is, they also have to understand what we are doing in each particular paragraph. It’s a much more complicated document and they need to really be able to understand that, ‘Yeah, okay, I am having a lucid interval, but I also know what all my stuff is and that I know that I want to give it away just like this.” It requires a higher level of understanding, so testamentary capacity when we are doing a will as compared to a durable power of attorney is going to be usually a lot higher.”

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