Chapter 4 - § 4.5 • INCOMPETENT PERSONS

• Jurisdiction: Colorado

§ 4.5 • INCOMPETENT PERSONS

§ 4.5.1—Conveyances by Incompetent Persons⁴⁸

In civil actions, as well as in criminal actions, there is always a presumption of sanity. Insanity and incompetence are words of vague and varying import; often the definition of the psychiatrist is at variance with that of the law.⁴⁹ Mental capacity depends not on whether the powers of the grantor's mind are impaired or whether he or she possesses the ordinary capacity to do business, but whether the grantor has the capacity to understand what he or she is doing and to determine intelligently whether or not to do it.⁵⁰ Thus, the legal test is whether a person is incapable of understanding and appreciating the extent and effect of business transactions that he or she is engaged in.⁵¹ Contractual capacity and testamentary capacity are the same.⁵²

The legal rule does not recognize degrees of insanity; it does not presume to make a distinction between much and little intellect. One may have insane delusions regarding some matters and be insane on some subjects, yet capable of transacting business concerning matters wherein such subjects are not concerned, and such insanity does not make one incompetent to contract unless the subject of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction.⁵³ Old age alone does not disqualify a person from making a deed.⁵⁴ Senile dementia and improvident expenditures are not conclusive of lack of capacity to contract.⁵⁵

A deed by one who is mentally incapable of executing it is void,⁵⁶ even as against a subsequent bona fide purchaser,⁵⁷ but such a deed may be color of title.⁵⁸ A deed by one in fact insane, but not so adjudged, is voidable, not void.⁵⁹

Even though a mental condition may not amount to legal insanity, it may be sufficient to result in an inequality between the parties to be considered in connection with circumstances of unfair dealing and inadequacy of consideration in determining whether a transaction was vitiated by fraud, either actual or constructive.⁶⁰

One who takes with knowledge of the incapacity of the grantor is not entitled to recover the consideration paid.⁶¹

§ 4.5.2—Conservatorships of Incompetent Persons

Upon petition after notice and hearing, the court may appoint a limited or unlimited conservator or make any other protective order provided in the statute relating to the protection...