Does Your Aging Parent or Loved One Have the Legal Capacity to Make a Will?

Close up hands of helping hands elderly home care. Mother and daughter. Mental health and elderly care concept for lack of legal capacity.

It’s not uncommon for a senior to decide to formalize their final wishes in legal documents or change the provisions in an existing document. If your aging parent or loved one expresses a wish to make a last will and testament or revise a previous will, it’s important to keep in mind that Georgia law requires a person to have legal capacity to make or change any estate planning document, including a will, trust, advance directive, or power of attorney. If the necessary legal capacity does not exist because of natural or medical cognitive decline in a person’s later years, the lack of capacity could result in a document being declared invalid by a court.

The Role of Legal Capacity in Estate Planning

Georgia laws and court decisions establish requirements for the validity of all legal documents, whether or not the document is part of an estate plan. A requirement that the person(s) executing a document have legal capacity applies to virtually every legal document. In the absence of legal capacity, a document is likely to be invalid under Georgia law.

Legal capacity includes mental capacity and is particularly important in the context of estate planning. If an elder executes or revises an estate planning document, like a will or trust, but does not have the mental capacity to make or change the will or trust, a court may invalidate the document based on lack of capacity. As a result, the person’s final wishes may not be implemented.

If an elder is experiencing cognitive decline, as many seniors naturally do, the issue of legal capacity may be a concern if the individual wishes to make new estate planning documents or revise existing documents. The best way to ensure that legal capacity concerns are fully addressed is to work with a knowledgeable estate planning attorney, who will take precautionary measures to ensure that requirements for legal capacity are satisfied.

Legal Capacity to Make a Last Will and Testament

Georgia statutes and court decisions establish rules for determining legal capacity. Different standards apply to different types of legal documents. For a last will and testament, the Georgia Code, § 53-4-10, states that any person aged 14 years or older may make a will, “unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action.”

The standards for testamentary capacity, which is the term used to describe the legal capacity to make a will, are further defined in the Georgia Code, § 53-4-11, as follows:

(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.

(b) An incapacity to contract may coexist with the capacity to make a will.

(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.

(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.

The statutory standards make it clear that an elder experiencing cognitive decline can still have the requisite legal capacity to make a last will and testament, if certain standards are met. Georgia court decisions further interpret those provisions in applying them to actual situations.

In determining whether the statutory criteria are met, a court will look at the facts and circumstances surrounding execution of the will. For that reason, documenting the circumstances of execution is extremely important to establish legal capacity. In any case where there may be an issue of testamentary capacity, it is crucial to seek assistance from an experienced estate planning attorney, to ensure that all legal requirements are satisfied.

Our attorneys at Asset Protection & Elder Law of Georgia provided additional details relating to the validity of wills in Georgia in a previous blog post, What Makes a Will Valid in Georgia?

Legal Capacity for Other Estate Planning Documents

In addition to the legal standards that apply to testamentary capacity for making a will, other Georgia statutes establish different criteria for legal capacity for other estate planning documents.

For example, two documents that are essential parts of a complete estate plan, an advance directive for health care and a durable power of attorney for financial matters, each have specific statutory standards regarding legal capacity that differ from testamentary capacity. In addition, if an estate plan includes a trust, other statutory provisions apply to determining legal capacity for creation or revision of the trust.

For an aging parent or loved one, getting assistance from a lawyer ensures that the relevant legal standards for capacity are met for all documents that are created or revised as part of an estate plan. That’s just one of the important benefits from counting on an estate planning and elder law attorney when you or your loved one create or revise estate plan documents.

Talk With an Experienced Georgia Estate Planning Attorney

In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, we focus on protecting our clients and their assets, whatever their unique circumstances may be. We help clients who wish to create or revise a last will and testament and other estate planning documents, to ensure that the documents are valid under Georgia law, including all requirements for legal capacity.

We provide services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County.

Categories: Elder Law