This week’s question:
My husband is getting up in years
and I am not sure he has the legal ability to sign a Living Trust. He can be
so forgetful, it’s scary. He still knows me, our children and our
properties, but how can I tell if it is OK for him to sign legal documents?
/s/Mary M
Dear Mary:
This is a very important topic,
Mary, and one that is not easily summarized.
Let me begin by mentioning a few
important California Probate Code sections, in this the first part of a
two-part series.
§810 states that there shall exist a
rebuttable presumption affecting
the burden of proof that all persons have
the capacity to make decisions and to be responsible for their acts
or decisions. So, this is one of many factors to look at.
Next, a person who has a mental or physical disorder may still be capable of
contracting, conveying, marrying, making medical decisions, executing wills or
trusts, and performing other actions.
Also, a judicial determination that
a person is totally without understanding, or is of unsound mind, or suffers
from one or more mental deficits so substantial that, under the circumstances,
the person should be deemed to lack the legal capacity to perform a specific
act, should be based on evidence of a deficit in one or more of the person's mental functions rather than on a
diagnosis of a person's mental or physical disorder.
Of course a doctor may need to help with this assessment.
Deficits in mental functions are defined in §811. Deficits in mental functions
include alertness and attention, including, but not limited to, the level of
arousal or consciousness and orientation to time, place, person, and
situation.
Other issues include information processing, including, but
not limited to short- and long-term memory, including immediate recall, the
ability to understand or communicate with others, either verbally or otherwise
and recognition of familiar objects and familiar persons.
In looking at legal mental capacity, one would be interested
in the ability to understand and appreciate quantities, the ability to reason
using abstract concepts, and the ability to plan, organize, and carry out
actions in one's own rational self-interest.
Of course, the ability to reason logically is important.
Deficits in these functions may be demonstrated by the presence of severely
disorganized thinking, hallucinations, delusions and/or uncontrollable,
repetitive, or intrusive thoughts.
Other deficits in mental functions could be listed, and the
court may take into consideration the frequency, severity, and duration of
periods of impairment.
Thanks for writing in, Mary. Be on the lookout for Part 2
of this topic in about two weeks.
/s/Donald J. DeVries
Almaden Valley
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502,
telephone at (408)268-9500, or mail at DeVries & Horowtiz, 6475 Camden
Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private,
so of course, he will not disclose your identity or any details about your
situation. Mr. DeVries writes this column to provide you with general
information about important legal matters affecting California
residents—not to give you legal advice about your specific matter. No
attorney-client relationship is created by these articles. The law is complex
and constantly changing and varies from state to state. So you should consult
an attorney before taking any action that would affect your personal or
business matters.
October 21, 2011
