What Does Incapacitated Mean in a Will?

Executive Summary 

• A person is considered incapacitated when they do not have the ability to care for their own health and safety, and the court verifies that a person is to be considered incapacitated.
• An incapacitated person may be restricted from making changes to a will except in certain circumstances, like when the court deems that person capable of understanding their actions and approves the amendment.
• Mental incompetence may occur because of factors such as dementia, aging, a traumatic brain injury, or other medical conditions.
• Courts assess mental capacity by gathering medical records, witness testimony, circumstantial evidence, and more. 

Introduction 

Being incapacitated indicates that someone is not able to care for themselves or understand the consequences of their own actions and decisions. Because of the limitations that an incapacitated person has, most state laws do not allow someone incapacitated to create, revoke, or update an existing will, trust, or beneficiary designation. For the incapacitated person’s loved ones and heirs, changes to estate planning once they can no longer care for themselves are emotionally and financially challenging.

In instances where someone is concerned about a lack of capacity affecting an already created estate plan, it may also be difficult to contest a will because the person who wrote it, also known as the testator, was incapacitated. You must prove that the individual’s mental capacity had been compromised before they changed their estate plans. 

Understanding what incapacitated means in a will prepares you to navigate the legal system while ensuring sound decision-making, protect a loved one’s estate planning wishes, and remain confident that their best interests are accounted for.

What does it mean when a person is incapacitated?

The law defines incapacity as anyone who is a minor under 18 years old or has had a court declare they could not manage property or take care of their own health and safety.

However, no adult is legally incapacitated until a court determines their status as such. While many people cannot practically care for themselves, such as those in a coma, legally, this has no impact. Of course, someone in a coma also cannot create a will.

Incapacitation means you cannot make financial or health decisions for yourself. If you are declared incapacitated, a guardian, conservator, or representative will often be appointed to make difficult choices on your behalf, with a fiduciary duty to act in your best interests. The guardian will be appointed by the court and can take care of important daily tasks.

Minors under the age of 18 cannot receive or manage property in their own name, as they are legally incapacitated. This also means they cannot create their own last will, unless they have been legally emancipated from their parents or guardians.  

Key elements of incapacity 

Key elements of incapacity include a lack of understanding of a will’s purpose, ability to recognize beneficiaries, and ability to understand the consequences of their actions. It’s important to note that testamentary capacity and mental capacity are two different things. Testamentary capacity is the legally recognized ability of a person to make a valid and informed will. 

Under California Probate Code 6100.5, a person is considered to not have testamentary capacity if any of the following elements are true: 

• They do not have the mental capacity to understand the nature of their actions, understand the nature of their property, or remember their relationships to descendants, family members, or other interested parties
• They suffer from a mental health disorder that causes delusions or hallucinations

Meanwhile, mental capacity is an element of testamentary capacity, but it speaks more generally to a person’s ability to make informed decisions, understand the options available, and recognize the potential consequences of the decision. 

Situations where a person may lose mental or testamentary capacity include entering a coma, being intoxicated, experiencing a traumatic brain injury, or developing a medical condition such as dementia or Alzheimer’s Disease. 

Establishing these elements before a court may require gathering medical documents, evidence of an individual’s lack of capacity, and witness testimony of their day-to-day interactions.

How mental capacity affects a person’s will

Mental capacity has considerable effects on a person’s will. A person who lacks mental capacity and is not of sound mind may risk making decisions that do not align with their own true interests—it may also open up the risk of a person being subject to undue influence from another party. 

Because of this risk, a last will and testament that can be proven was created with a lack of sound mind or under circumstances of undue influence is not considered valid to a court. If a person creates or changes their will after becoming legally incapacitated, this may be grounds for the beneficiaries to challenge the will on the grounds that it might not align with their intentions when of sound mind. 

If the court has enough evidence that a person’s will was created or altered by the creator during a time of incapacity, the affected portions are likely to be considered invalid. Sometimes, this may just be a portion of a will or could be the full document.

Can an incapacitated person change their will?

It is possible for an incapacitated person to change their will, but the process is not as straightforward as if someone were to change their will while having full testamentary capacity. An incapacitated person is typically restricted from changing their will as a means of protecting their interests—if a person is not of sound mind, they may be subject to undue influence or make alterations that do not align with their true interests. 

That said, testamentary capacity is not a simple case of having it or not having it. So, there may be some cases where an incapacitated individual is granted the right to change their will. If a person shows a certain level of functionality and can provide evidence that they are of sound mind, they may be able to change their will under certain circumstances. In these cases, the court may need to provide approval for any amendments made by an individual without capacity. 

The person who made a will is the only person who can change their will—this means that even a legal guardian or conservator cannot make changes if they are not endorsed and approved by the will’s initial creator. While there are circumstances in which an attorney-in-fact may be able to modify an incapacitated person’s trust, California statute expressly prohibits that power from extending to the person’s will.

How do you declare someone legally incapacitated?

If you have a loved one you believe cannot legally make informed decisions, you may need to seek to have them legally declared incapacitated.

The courts hold final determination over whether someone has become incapacitated. As noted above, some cases are straightforward, such as people in comas or with complete loss of brain function. However, other instances are more complicated and subjective, like a person suffering from dementia.

For example, while a dementia patient may seem fully competent for one hour or one day, the next, they may be incapable of caring for themselves and making important legal decisions. Because of the complexities involved in determining when someone no longer has the legal capacity to handle their own affairs, some courts set up special committees or assign case managers to gather evidence and context for a given case.

These parties should gather information about an individual’s capacity, such as medical records and testimony. The court will then use this evidence to make a final declaration whether someone does not seem able to make their own sound decisions and is legally incapacitated.

How does a court determine whether someone is incapacitated?

To prove that someone is legally incapacitated, you need to petition a court in your state. Having someone declared legally incapacitated is a complex process, as understanding someone’s mental state or determining whether someone is incapacitated is not always easy—this process may require gathering swaths of evidence, such as medical records, circumstantial evidence, and information about the individual’s daily routine. 

Usually, this process begins with a doctor’s appointment or psychiatric evaluation to gather a medical diagnosis. California offers Form GC-335 (Capacity Declaration for a patients’ psychologist, physician, or other medical professional) to tell the court about the mental capacity of a potential conservatee. In Texas, a person would use Form 2190 (Capacity Assessment for Self-Care and Financial Management) for the same purpose.

The court may then request more information to understand and establish the nature of an individual’s incapacity. This may involve asking questions like:

• What is their general practitioner’s assessment of the individual’s capacity?
• Has their daily routine changed considerably?
• Are they still able to care for themselves on a regular basis?
• Do they still engage in activities they enjoy?

Once there is enough evidence gathered, the court will then make a final determination of incapacity. If a person seems to have a clear understanding of their actions, then the court may find that the person does not meet the criteria to be considered incapacitated. 

What should you do if an individual is declared incapacitated?

For individuals who have been declared incapacitated, the law in states like California and Texas allows both voluntary and involuntary conservatorships and guardianships. But you can only create a voluntary guardianship while the person has the capacity to mentally manage some of their affairs.

To secure an involuntary guardianship, you will need to submit the declaration that the person is legally incapacitated to prove that your loved one cannot care for themselves and that there is no less restrictive way of handling their affairs available. Sometimes, this process can be resisted by the person you are seeking to declare incapacitated, which may lead the court to review medical evidence and possibly take testimony. 

Other issues that may be reviewed are who should be appointed guardian and how much power the guardian should have over the incapacitated person’s affairs. 

Seeking to have a loved one declared legally incapacitated may be a stressful and challenging journey, but it can have considerable benefits. Preventing your loved one from harming their financial or medical status due to their inability to understand and process information can be more valuable than the emotional tax you will have to pay. 

Before you attempt to have a loved one conserved, you should consult with an experienced incapacitation lawyer to discuss your options.

How can you plan for incapacity? 

If you are worried about the risk of becoming incapacitated in the future, it’s a good idea to develop a comprehensive plan in preparation. Realistically, unsuspected incapacity can happen to anyone and only becomes more likely as we age. Planning for incapacity is important for anyone to ensure that their wishes continue to be followed after they become incapacitated. 

There are two key ways to plan for incapacity:

1. Comprehensive estate planning – Building an estate plan that includes a will or trust planning documents early can help individuals outline and clarify their wishes for their assets and property to be followed even if they become incapacitated.
2. Designating a power of attorney – Designating a power of attorney gives someone the legal right to act on your behalf, including making important medical, financial, and legal decisions, ensuring that your wishes are carried out in a manner that you are content with.

It’s important to consult estate planners and experts about your estate plan in order to determine the best path forward for your own personal circumstances. This planning may also involve reaching out to financial advisors and tax professionals to understand the advantages and disadvantages of all estate plan options.

How do you contest a will based on incapacity?

If a person has already made a will and they are suspected to have been incapacitated, there is a chance to contest the will. A will contest is an avenue that a person can take to question the validity of the will before the court. This requires proving incapacity retroactively. 

Can you contest a will based on incapacity?

Yes, you can contest a will based on incapacity. If you feel that a person’s will was created or changed under circumstances that involved their lack of mental or testamentary capacity, you can petition the probate court for a will contest to invalidate the affected portions of the will. A successfully contested will usually results in reverting to any previous estate plans or documents that were established when an individual still had testamentary capacity.

That said, it’s important that you have valid grounds to contest the will and evidence to support your contest—otherwise, the court may not be willing to hear your case. For example, simply having a hunch or feeling that a will was created under terms of incapacity is insufficient. You must have reasoning behind your suspicion and valid evidence to support your claim. 

What evidence is needed to contest a will for incapacity?

Contesting a will for incapacity is not simple and straightforward, as there is no specific checklist to fill out to prove incapacity. Instead, you will likely need to build a case that involves multiple forms of evidence that demonstrate incapacity to a probate court.

Some evidence that may be necessary includes: 

• Medical records demonstrating a lack of capacity, which may include a psychiatric evaluation.
• Witness testimony from those close to a will creator that highlights the creator’s difficulty managing their own affairs.
• Expert testimony from medical or mental health professionals. 
• A court order that declares a will creator incapacitated.

If you are considering contesting a will, you should consult a skilled probate litigation attorney for support. An attorney can help you assess the strength of your case, determine what other evidence may be necessary, and help you gather the evidence necessary to build a strong case for your will contest.

How do you know if someone is becoming incapacitated? 

In cases of aging, cognitive decline, or a medical condition, a person may demonstrate gradual signs of becoming incapacitated. You can often tell if someone is becoming incapacitated based on certain indicators related to their daily actions and behaviors. 

Early signs that someone may be becoming incapacitated include: 

• Memory loss
• Disorientation 
• Difficulty handling daily activities
• A significant change in their daily routine
• Consistent difficulty forming thoughts or sentences
• Struggles managing their finances

If you feel that a loved one is at risk of becoming incapacitated, the first step is finding appropriate medical care to support them. You should also have an honest conversation with them about what steps may be necessary to prepare for their well-being and what decisions may need to be made to protect their interests. Consulting estate planning experts or seeking a guardianship can offer support in this process. 

The role of guardians and conservators in incapacity cases

Guardians and conservators may play an important part in supporting an incapacitated individual—this arrangement is common in protecting individuals with a developmental disability, after a significant medical condition, or during aging. Guardians and conservators are trusted individuals appointed by the court to take legal responsibility for handling important financial, legal, or medical affairs for another individual. In Texas, this dynamic is known as a guardianship, while in California, it is known as a conservatorship. 

Ultimately, a conservator or guardian’s responsibility is to listen to the protected person in the arrangement and ensure that their interests are being carried out. The courts consider it the guardian/conservator’s responsibility to make decisions for the protected person by either using their best judgment or consulting the protected party themselves.

Some of the responsibilities guardians and conservators have may include: 

• Paying bills and managing daily affairs for the individual
• Arranging for the care and welfare of the protected individual 
• Managing financial and tangible assets for the conservatee
• Making careful and informed investments using estate assets without taking unnecessary risks
• Marshaling and inventorying estate assets
• Recordkeeping and reporting information through accountings to the court at least yearly or as requested
• Cooperating with the Court Investigator’s Office to demonstrate honest and responsible caretaking 
• Making medical decisions such as whether to have surgery or when to enter an assisted-living facility

A guardianship or conservatorship can be either voluntary or involuntary. This means that a person may opt to have a guardian or conservator appointed for themselves, or the court may decide based on an individual’s lack of capacity. 

Despite their extensive responsibilities, conservators and guardians have limitations, especially in the estate planning process. A conservator or guardian cannot change a will or trust instrument. If you have questions about the dynamics of a legal arrangement or how to arrange one, you should consult a skilled conservatorship or guardianship attorney for support. 

Estate planning for individuals concerned about incapacity

Estate planning is an important and crucial tool for protecting an individual’s best interests beyond incapacity. Everyone should develop a clear estate plan regardless of their medical condition. By getting in front of any concerns and developing an estate plan early, you can position yourself to preserve your wishes and offer long-term support for your family.

Some options include: 

• Establishing a trust – A trust puts ownership of assets into the hands of a trustee who is responsible for managing these assets and distributing them to beneficiaries according to the terms specified by the trust creator. 
• Creating a will – Establishing a will allows the creator to outline what assets they own, identify beneficiaries to receive them, and name an executor who will be responsible for distributing them.

There are various types of wills and trusts that may offer different advantages depending on which is best for one’s estate. Consulting an estate planning expert will allow you to determine the best option for your situation. Once you have established your estate plan, you should update it at least yearly to account for any changes to your lifestyle or relationships with beneficiaries.

Consult with RMO Lawyers today 

Mental incapacity in a will means that a person does not have the ability to understand their actions or the consequences of their decisions. Proving incapacity is a complex process and is far from straightforward. If there are questions about whether an individual’s incapacity affected their estate planning documents or altered a person’s right to an inheritance, you should consult a skilled probate litigation attorney as soon as possible.

Whether you suspect a will has been affected by a lack of capacity or you feel that a loved one’s rights are being compromised, a probate litigation attorney can support you in navigating the process. In the event that a conservatorship or guardianship is complicating the estate administration process, our team can help. In either case, we’ll help you build a winning strategy to secure your rightful access to an inheritance. 

Schedule a free consultation with our attorneys at RMO Lawyers to learn more about your options.