If you’re concerned about a loved one's ability to make a will, you're not alone. Determining testamentary capacity – the mental ability to create a legal will – can be a complex and emotionally charged process. In my experience conducting capacity assessments for over a decade, here are some of the most common challenges patients and their families face.
What Does Testamentary Capacity Mean?
In California, the law defines testamentary capacity as the ability to understand the nature of a will, the extent of one’s property, and the “natural objects” of one’s bounty. Simply put, testamentary capacity is the ability to understand what a will is, know what property you own, and understand who your loved ones are. It might sound straightforward, but determining if someone has this capacity can be challenging in some cases.
The Challenges You Might Face
Uncertainty about your loved one’s mental state:
It can be difficult to tell if changes in your loved one's behavior are normal aging or signs of something more serious. This is especially concerning if there is suspicion of “undue influence,” which means that someone is deliberately trying to coerce an older adult or otherwise vulnerable adult to change their will.
Disagreements within the family:
Family dynamics can become strained when there are questions about someone's mental capacity, particularly when there is money or property that will be distributed. I have worked with many people who are shocked at the way their family members have behaved when there is money at stake and a question about their loved one’s capacity to make decisions about their estate. Navigating these dynamics is often the most painful aspect of capacity cases.
Complex legal process:
Navigating the legal system can be overwhelming, especially when dealing with sensitive family matters. I always recommend having an attorney with expertise in elder law and estate law involved in capacity cases, because the advice of medical providers or a psychologist, such as myself, is no replacement for knowledgeable legal guidance.
Emotional toll:
The process of assessing testamentary capacity can be emotionally draining for both the individual and their family. Even in the most straightforward cases where capacity testing is just to demonstrate that things are fine and a person has the capacity to make a change to their estate, the assessment involves some amount of cognitive testing, interviews with the patient and family or caregivers, and often a review of medical and/or financial records. This takes time and energy and involves talking about sensitive things. In more complex cases, the time and energy required will be more extensive.
What to Do If You Have Concerns
If you're worried about your loved one's ability to make a will, it's important to seek professional help. A qualified psychologist who specializes in capacity assessment, like myself, can conduct a comprehensive evaluation.
Open communication:
Talk to your loved one about your concerns in a respectful and supportive manner.
Gather information:
Collect any relevant medical records, legal documents, financial records, and observations of your loved one's behavior. For example, sometimes a person’s bank statements show evidence of concerning decisions, such as a pattern of donating thousands of dollars to questionable causes, or months of late fees because they are not paying bills on time. If you suspect a loved one may need a capacity assessment in the future, I highly recommend keeping a log of your observations, with dates, so that you can easily recall and report these incidents to the psychologist doing the testing.
Seek legal advice:
Consult with an attorney to understand the legal process and your rights. Ideally, this should be an attorney with relevant expertise in estate law, probate, or elder law.
Build a support system:
Reach out to family and friends for emotional support. If you are at the point where you are considering a capacity assessment, it is likely you have already experienced worry and stress related to this situation. Don’t be afraid to talk to your close friends and family about the situation, and don’t be afraid to ask for help and support.
Seek An assessment for Testamentary Capacity in Los Angeles, CA
Remember, you're not alone in facing these challenges. Many families have gone through similar experiences. By seeking professional guidance and support, you can navigate this difficult process with greater clarity and understanding. You can start the assessment process with Dr. Reger by following these simple steps:
Contact (424) 262-1925 to schedule your appointment
Meet with Dr. Reger for an evaluation
Start having your questions answered!
OTHER SERVICES OFFERED BY DR. REGER IN LOS ANGELES, CA
Capacity assessments are not the only service offered by my Redondo Beach-based practice. I’m also happy to offer multiple neuropsychological and psychological assessments. Other assessments include cognitive and dementia testing, pre-surgical assessments, and med-legal evaluations. In addition to evaluations, I also provide individual therapy, counseling for older adults, and mental health consultations and presentations. Visit my blog for more help today!