One of the bedrock rules for estate planning attorneys is that our clients must have sufficient mental capacity to execute their documents. This does not mean that a client has to have perfect understanding of every passage of legal boilerplate. Basically, a client needs to be able to understand the nature of their property and the “natural objects of their bounty” — i.e. who their family members are.
I have had situations in which I have interviewed potential new clients (generally senior citizens who were brought to me by their children), and have refused to represent them because I did not believe that the potential client had capacity to execute documents.
What made me think about this is that I read an article about a case in California, in which an attorney was sued for malpractice by a decedent’s new wife because the attorney refused to amend the Decedent’s trust before the Decedent received a psychiatric evaluation. According to an article in the Metropolitan News-Enterprise, the attorney did not owe duty to a potential beneficiary for a document not drafted.
Although it does not directly impact me because I am not in California, it is interesting nonetheless, as it is a constant reminder of the many interests that estate planning attorneys have to balance in working for our clients.