What Level of Mental Capacity Do You Need to Draft a Will?

Even if you are showing signs of dementia, you may still have the necessary capacity to sign various estate planning documents. In Minnesota, there is a presumption of mental competence unless a court determines otherwise. Consequently, if you are lucid at the time you sign your Will, you are considered mentally competent even if you are not lucid at some point before or after signing the document.

Wills, Health Care Directives and Power of Attorney documents each have their own legal standard in Minnesota for determining whether you have a disabling condition that prevents you from creating a valid document.

Will: You have the capacity to make a Will if you know the “nature, situation and extent” of your property and the claims of others on your assets, and you are able to form a rational decision regarding your property. In Minnesota, this is generally considered a less stringent standard than the mental capacity needed to enter into a contract.

Power of attorney: Minnesota statutes are unclear as to the level of capacity required to create a valid power of attorney, but case law indicates that you must have the ability to understand, to a reasonable extent, the nature and effect of what you are doing when you grant the power. With a power of attorney document, you select someone to be your so-called attorney-in-fact. In the document, you give your attorney-in-fact broad or limited power over your financial matters, and those powers are in effect as soon as you sign the document. If the document is a “durable” power of attorney, your attorney-in-fact also has the powers that you designated when you are incapacitated.

Health Care Directive: Minnesota law requires that you must have “capacity” to execute this document. However, what constitutes “capacity” is not defined in the Health Care Directive statutes, and there is no case law currently that fills in the gap.  That said, the Health Care Directive only takes effect when you lack “decision-making capacity”. Minnesota law defines “decision-making capacity” as the ability to understand the significant benefits, risk and alternatives to proposed health care and to make and communicate a health care decision.

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Disclaimer: This Blog is for informational purposes only and is not to be construed as legal advice. If you have questions, please seek the advice of an attorney. An attorney-client relationship is not formed by reading this Blog. If you are interested in Wittenburg Law’s representation of you, you must contact Wittenburg Law for a determination of whether your matter is one for which Wittenburg Law is willing and able to accept representation of you.

Bonnie Wittenburg, Wittenburg Law Office, PLLC, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305  952-649-9771   www.bwittenburglaw.com  bonnie@bwittenburglaw.com