Legal Guidelines and Methods for Evaluating Capacity

• Publication year: 2003
• Pages: 65

32 Colo.Law. 65 Colorado Lawyer 2003.

2003, June, Pg. 65. Legal Guidelines and Methods For Evaluating Capacity

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65

Vol. 32, No. 6, Pg. 65

The Colorado Lawyer
June 2003
Vol. 32, No. 6 [Page 65]

Specialty Law Columns
Estate and Trust Forum
Legal Guidelines and Methods For Evaluating Capacity
by Spencer J. Crona, Richard F. Spiegle

This column is sponsored by the CBA Trust and Estate Law Section. The column focuses on trusts and estate law topics including estate and trust planning and administration, elder law, probate litigation, guardianships and conservatorships and tax planning

Column Editor:

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726

About The Authors:

This month's article was written by Richard F. Spiegle, Psy.D., Denver, a board certified clinical and forensic psychologist in private practice - (303) 837-0776, rspiegle@earthlink.net; and Spencer J. Crona, Denver, senior associate with Wade Ash Woods Hill & Farley, P.C., specializing in estate administration, conservatorship, guardianship, settlement planning, and probate litigation - (303) 322-8943, scrona@wadeash.com.
The authors are grateful to Martha M. Woods, Ph.D., clinical psychologist, for her contributions to this article.

This article presents information on modern clinical methods of assessing a person for purposes such as testamentary capacity or the need for assistance with personal care or financial management. Some methods of evaluating competency comport with recent developments in both statutory and case law.

Concerns about an individual's testamentary, contractual, or functional capacity often create havoc within a family. Issues of competency may arise when a person is writing a will, making gifts or joint ownership arrangements, or attending to various estate planning matters. Such issues may arise after a person's death, typically when probate litigation is involved. The need to evaluate an individual's competency also may be an issue if a guardianship or conservatorship proceeding is being contemplated or is in place.

The terms "capacity" and "competency" have both legal and medical connotations, depending on the context in which they are used. Where mental and functional capabilities are concerned, "capacity" generally is a legal concept, while "competency" usually is a medical or clinical concept. Nonetheless, in this article, those terms are used interchangeably, except where explicitly distinguished.1

This article reviews Colorado probate law pertinent to the issue of capacity. It addresses capacity in both the lifetime and testamentary contexts, as well as in areas of guardianships and conservatorships. How conditions affecting capacity might be evaluated and under what circumstances an evaluation may be needed are explored. The article also provides an overview and analysis of several methods used by clinicians and others in evaluating an individual's competency.

Testamentary Capacity

Under the Colorado and U.S. Constitutions and the Colorado Probate Code ("Code"), individuals have the right to dispose validly of their personal assets and property as they choose. Such decisions are not constrained by age or choice of beneficiary, as long as an individual is possessed of "sound mind."2 Thus, a testator "may indulge his prejudice against his relations and in favor of strangers . . ." as desired.3

The capacity to contract, make a gift, or execute a will relates to the individual's legal abilities to make decisions about the management and disposition of his or her financial assets. These are specific instances of the capacity to care for one's property, and assessing such capacities accordingly may require specialized methods, as described in this article.

Unfortunately, the evaluation of a person's testamentary capacity, which can apply where people choose estate planning through various instruments as alternatives to wills, often is done postmortem. Commonly, this is accomplished through review of medical records that may leave many unanswered - and perhaps unanswerable - questions. In such cases, a forensic evaluator may be asked to opine retrospectively about the individual's competency on the basis of medical records, other records, documents written by the deceased, recollections of friends or associates, and the circumstances of execution of the instrument in question.

Postmortem forensic evaluation of testator capacity frequently becomes a complex aspect of contentious and costly estate litigation, perhaps fostering the observation, "A will is a terrible thing to waste." When a court invalidates a will, that will amounts to a direful waste of a precious opportunity to establish and enforce a person's last wishes. For those who choose instead, for whatever personal reasons, to err on the side of caution, the best way to protect against family misunderstanding, diagnostic ambivalence, and a potentially acrimonious will dispute is to engage a trained and experienced forensic examiner to evaluate the testator for the purpose of a determination as to his or her testamentary capacity.

Testamentary Requirements

The act of making a valid will requires relatively basic mental ability and can be a straightforward task when properly handled. At minimum, the Code mandates that a testator may write a valid holographic will, provided that "material portions" are rendered in the testator's handwriting and the testator signs it.4 Other provisions of the Code describe the features of those instruments that may be deemed "writings intended as wills,"5 while still others prescribe the elements of a will presumptively valid on its face, without evidence extrinsic to the instrument itself.6 All of those methods of expressing testamentary intent depend for validity on the overriding prerequisite that the testator must be age 18 or older and possessed of sound mind.7

The Colorado Supreme Court addressed the definition of a "sound mind" in the context of testamentary capacity in an important 2000 case, Breeden v. Stone (In re Estate of Breeden).8 In that opinion, the Court addressed two standards for the legal determination of sound mind, known as the "Cunningham Test"9 and the "Insane Delusion Test."10 The Cunningham Test standard for sound mind comprises five elements. The testator must: (1) understand the nature of his or her act in making a will; (2) know the extent of his or her property; (3) understand the proposed testamentary disposition (how the will would dispose of that property); (4) know the "natural objects of his or her bounty"11 (the testator's natural heirs); and (5) understand that the will represents his or her wishes.

The Insane Delusion Test might be described as a "negative" standard - what "sound mind" for testamentary purposes is not. This test refers to "a persistent belief" that materially affects the preparation or dispositions of the will, "in that which has no existence in fact and which is adhered to against all evidence."12 Thus, even a considerable degree of eccentricity does not necessarily indicate that the testator is incapacitated for testamentary purposes. Likewise, a testator's delusions do not contradict testamentary capacity if they do not affect how he or she disposes of property by will.

The Colorado Supreme Court concluded that the two standards for determining sound mind were not mutually exclusive. The Cunningham Test applied, for example, to cases where pervasive mental illness, cognitive or physical infirmity, or dementia affected the making of the will. The Insane Delusion Test applied, for example, to cases where paranoid or schizophrenic delusions affected the making of the will. Influence of prescribed or illicit medications might play into the factual circumstances for application of either standard. Thus, in Breeden, the Colorado Supreme Court enunciated the consolidated rule that sound mind "includes the presence of the Cunningham factors and the absence of insane delusions that materially affect the will. . . ."13 (Emphasis in original.)

The Code confers a presumption of validity on a will prepared and executed within statutory norms, either by compliance with the "self-proved" will statute14 or by proofs of...