- Elder Law
- Family Law
There are several forms of capacity under the law, all having varying requirements:
1. Testamentary capacity
2. Donative capacity
3. Healthcare capacity
4. Contractual capacity
Testamentary capacity is rather low compared to the others because it does not require testators to manage all of their affairs or daily transactions. A testator may be without capacity immediately before and immediately after executing his Will, so long as he has a lucid interval at the time of execution. For a testator to make a Will in Texas, he must be of sound mind. This means the testator must understand the Will, the effect of making the will, the property in his estate, the persons to whom he wishes to give the property, the object of his bounty (e.g. family), and hold all of this information in his mind long enough to form a reasonable judgment.
Health care capacity relates to a patient’s informed consent. The burden is on the health care provider to disclose all relevant information so the patient can make an informed decision. To give consent, the patient must be competent, informed, and act voluntarily. The patient has the ultimate right to forbid unauthorized contact by a health care provider. As of now, there is no case law in Texas to set parameters for health care capacity.
Contractual capacity requires a higher level of mental capacity. An individual may enter into a contract if he understands the nature and consequences of his actions and understands the business he’s transacting. The more complex the transaction, the higher degree of mental capacity required.
The capacity required to execute a power of attorney is akin to the standard for capacity to enter into a contract. Powers of attorney bestow tremendous power on the agent. The agent under a power of attorney can take any action that the individual could, such as sell a home, liquidate stock, and spend money.
Donative capacity seems to require a higher capacity than contractual capacity. At the time of this writing, Texas does not have reported case law about donative capacity. Courts in other jurisdictions require the donor to understand both the nature and purpose of the gift, the nature and extent of the property given, the natural object of the donor’s bounty, and the effect of making the gift.
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