A lot of people leave will drafting until the very last minute; sometimes, we get calls from people panicked that their elderly mother or father needs to enter into long-term care and needs a power of attorney in a hurry. The question then becomes: are they capable?
Capacity to make a will is a very tricky thing. You can be capable today and not tomorrow; you can be capable in the morning and not later in the day. When a person is declared incapable, in can mean a lot of very different things.
Capacity to make a will is determined through a combination of legislation and court history. Capacity to make a power of attorney is done the same way. There are other tests for making decisions about care or property, or even the capacity to marry.
In a law office, your lawyer will determine if you know who you owe obligations to and approximately what you own. They will chat with you to assess whether you know who is in your family, how many grandchildren you have, and how you met your spouse. They may even casually ask about what day or month it is. Capacity is a very serious issue, and it is extremely important to have a note in your file that the lawyer has no concerns about yours.
