How to not Lose Your Mind When Your Client is Losing His: Operating in the Gray Zone of Diminished Capacity



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Estate Planning and Community Property Law Journal


The estate planning attorney must understand substantive tax techniques, distribution mechanisms, and probate laws that accompany an estate planning and administration practice; however, the attorney cannot stop there. He or she must also embrace the human side of estate planning—the side involving a client’s emotions, mental and psychological state, and relationships amongst family members and friends. This article will discuss the awareness surrounding applicable legal standards of capacity, the legal and ethical rules important to estate planning attorneys with respect to capacity and undue influence, and the practical steps that an estate planning attorney can undertake when representing a client with diminished capacity or incapacity. This article will not spend a great deal of time discussing drafting for incapacity.



Estate planning, Diminished capacity, Incapacity, Standards of capacity, Sound mind requirement, Contractual capacity, Testamentary capacity, Powers of attorney, Powers of appointment, Appointment of guardian, Evaluating capacity, Undue influence


12 Est. Plan. & Cmty. Prop. L. J. 53