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Encino Elder Attorney: How the Legal Competency of a Senior Can Affect Planning Options

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For Encino elder lawyers, legal competency is one of the main issues confronting seniors that we see. Issues of legal competency can cause problems while a senior is still alive and after he or she has passed, especially when considering financial affairs and disputed inheritances. Elder law attorneys in Encino must be greatly attuned to a senior’s legal competency as it relates to physical and mental decline because of the important consequences it can have on estate planning and long-term care planning.


How is competency determined?

Encino elder law attorneys must determine that their clients are of sound mind and can make legal decisions for themselves. Clients need to understand and sign fairly complex legal documents such as real estate deeds, revocable and irrevocable trusts, powers of attorney, and living wills.   The senior’s ability to understand what they are dealing with has a very real impact on the future of their assets, properties, and even their medical well-being. When attempting to evaluate the issue of competency when meeting with clients, we look to see how alert the client is, whether or not they understand the information being presented to them, if they appear confused, or, if a previous relationship with the clients exists, whether or not the decisions they are making are in line with what the attorney knows about the client’s values.

Sliding scale of competency

All too often, Encino elder law attorneys see clients who shift back and forth between lucidity and incompetence.  For example, a client who is competent enough to sign a Power of Attorney one day may not be competent to sign a Last Will and Testament a week later. This does not mean that all legal documents signed during this time are invalid; as long as the client was competent at the time they signed the document, which is often attested to by at least two witnesses as well as the attorney, the legal document will be valid. In such cases, elder lawyers in Encino will often write memos after a signing that state why they believe the client was competent to sign the document.

When competency is called into question

Most people know about will contests and the issue of competency – a family member who was left out of a Last Will and Testament may claim the individual was not competent enough to create the Will and challenge it in court. The person bringing the will contest to court must prove that the individual was incompetent, and therefore has a heavy burden. Evidence must be shown that proves the individual who created the Will did not know what they were doing or had a diminished mental capacity, which is something a physician will usually have to attest to. This is also where the notes and memos of an Encino elder lawyer come into play.

If you have any further questions about legal competency in regards to elder law, please contact us at (818) 905-6088 to set up a consultation.