Adults are presumed to have capacity, but does everyone truly have it? Capacity is defined as the “ability to effectively communicate one’s wishes.” Capacity, however, is not a diagnosis. It is well settled in Pennsylvania case law that “…mere weakness of intellect resulting from sickness or old age is not legal grounds to set aside an executed contract if sufficient intelligence remains to comprehend the nature and character of the transaction.” Cardinal v. Kindred Healthcare, Inc., 155 A.3d 46, 50 (Pa. Super. 2017). There are several things that may “tip off” families that an individual would benefit from a capacity assessment such as:

• The person has a diagnosis of dementia, cognitive impairment, mental illness, and/or intellectual disability;
• The person has hearing/vision issues;
• The person has difficulty communicating;
• The person has a challenging family situation; and
• The person’s proposed estate plan is very different than prior plans.

The best way to determine a person’s capacity is to refer them for a comprehensive neuropsychological evaluation. Overall, it is important for family members and lawyers to determine if an individual has the capacity to execute a Power of Attorney and to consider all of the facts of a particular situation before taking any actions. As always, CGA Law Firm has a dedicated group of attorneys who are always here to discuss your questions and concerns related to estate planning and administration.

If you have questions or want to discuss these matters further, please contact CGA Law Firm’s Estate Planning Practice Group.