For legal purposes, mental capacity comes down to your right to make your own decisions. There are times when people do have the mental capacity to make their own decisions and times when they do not.
Someone will have the mental capacity to make a decision for themselves and their estate plan when they:
- Can remember information given to them long enough to make an educated decision
- Understand the information that has been provided to them
- Can comprehend and use the information to come to a conclusion and decision
- Are able to express their decision to others through verbal or non-verbal means
Some people will have the mental capacity to make decisions some of the time. Others will have the mental capacity to make decisions all of the time. Still others will lack mental capacity completely in the eyes of the law.
When can a person lack the mental capacity to make legal decisions?
There are multiple reasons why a person may lack the mental capacity needed to make decisions. Some of the common causes of temporary or lasting mental incapacity include:
- A severe learning disability
- A brain injury
- A mental health illness
- A stroke
- Being under anesthetics
- Being unconscious due to an accident
It is important that those who are caring for you always give you the opportunity to make decisions, but if you no longer have a good memory or are unable to comprehend how your decisions may affect you or others, then you may no longer have the mental capacity needed to make legal decisions about your health or estate.
Who makes decisions if you cannot?
If you cannot make decisions for yourself any longer, your established power of attorney should make decisions on your behalf. If you do not have a power of attorney, a court may establish one for you. Otherwise, in emergencies, your spouse may make decisions, or it may come down to the opinions of doctors or other people who are dealing with your specific medical or legal issues. It’s important to understand how the law may apply to you in these circumstances, so you can make decisions to protect your rights and to make your wishes known.