When a spouse or parent has been diagnosed with dementia or some other condition that affects cognition, the family members may conclude (or be told by others) that the person no longer can sign a valid will or power of attorney.  As the old song says, “it ain’t necessarily so.”  If a person has sufficient legal “capacity”, then his or her will or power of attorney will be valid regardless of some medical diagnosis.  The following describes the levels of capacity for various legal transactions.

Standards of Capacity. There are different levels of capacity to make different kinds of decisions.  “Capacity” can mean different things depending on the type of legal action contemplated for an individual.  Among the more common types of capacity that must be considered:

• Testamentary Capacity. In order for one to be able to make a valid will, that person (called the “testator”) must be able to (i) “understand and appreciate the nature and effect of his act” in signing the will, (ii) understand and recognize “the natural objects or persons to receive his bounty (property)” and their relationship to him, and (iii) be “capable of determining what disposition he desires to make of his property”. In re Estate of Byrd, 749 So.2d 1214 (Miss. 1999).  If a person has this level of capacity at the time she executes a last will and testament, the will is valid even though the maker was incapacitated for some time prior to or after such execution.  The court case of Lee v. Lee, 337 So.2d 713 (Miss. 1976) ruled that, even though a person is found to be unable to manage his property due to incapacity and a conservator is appointed for him by a judge, he may still have the level of capacity necessary to execute a valid will.  This same (relatively low) level of capacity needed to create a valid will is sufficient to establish a valid power of attorney or trust.

• General Contractual Capacity.  The law generally recognizes that a person does not have the capacity to enter into a valid contract if he does not have “sufficient mental capacity to understand the nature and effect of the particular transaction.” McElroy v. Mathews, 263 S.W.2d 1 (Mo. 1953).  This means the person must understand the performances that each party to the contract is obligated to render and the benefits to each.  This is a higher standard than testamentary capacity.  A person who has had a conservator appointed for him cannot legally enter into any contract without court approval.

• Advance Health Care Directives.  The Mississippi Uniform Health-Care Decisions Act (MCA §41-41-203(d)) defines “capacity” for general health-care decision-making as “an individual’s ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health care decision.”

• Informed Consent.  In order to validly consent to particular medical treatment for oneself, the individual must be able to “understand the diagnosis, the nature of the proposed treatment, the risks inherent in it, the prognosis if the proposed treatment is not undertaken, and the alternative methods of treatment, if any”.  This is called “informed consent.”