Memory Loss and Lack of Capacity

According to the Florida Department of Elder Affairs’ Alzheimer’s Disease Initiative,* approximately 12% of Florida’s senior population has been diagnosed with Alzheimer’s disease. Obviously, the number of undiagnosed cases, and the number of persons dealing with other memory disorders is much higher.

I frequently have interactions with clients that are experiencing some degree of memory loss. Whether that client has the capacity to sign various documents, beginning with the ability enter into an attorney-client contract itself, can be a frequent cause for concern and contemplation.

In the context of a having the capacity to sign a Will, Florida Statutes 732.501 requires a person to be of “sound mind.” Many cases discuss what having a “sound mind” means. I find that the very early (1918) case of Newman v. Smith (found at 77 Fla. 633, 82 So. 236) states the test well:

[I]n order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extend of his property, and the nature of the claims of other whom, by his will his is excluding from all participation in that property….”

The Newman court further quotes language from a New York Court of Appeals decision, Delafield v Parish, 25 N.Y. 9 (NY Ct App 1862), emphasizing that this capacity cannot be fleeting. The testator must have “sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.”

In practice, every estate planning attorney knows how difficult the decision of whether capacity exists can be. Those suffering from memory loss often become adept at hiding their lack of understanding. Fortunately, the signals are similar in many cases, so become recognizable. For example, when one spouse allows the other to do most of the talking, and does not offer original thoughts when questioned, capacity concerns arise. Language that signals concern might be: “I think he’s right about these things we’ve been talking about,” or “I’ve learned never to disagree with her,” or “I’d be a fool not to agree.”

What to do is a very difficult question. There is not one answer to fit every situation. Although I do not feel that early signs of dementia mean that a person lacks all capacity, those early signs of dementia must be taken very seriously. I find it helpful to keep the Newman case in mind when dealing with a questionably-competent client. I ask myself: am I able to discuss the proposed document with the client in sufficient detail so that the client understands the “particulars of the business to be transacted”? And, can the client hold those particulars in mind long enough to be able to form “rational judgement” about them?

Again, each case is different, but I rely on the language of the very old case of Newman v Smith for personal instruction.

*See the Department of Elder Affairs’ Alzheimer’s Disease Initiative webpage at

Sheryl J. Manning, PL.
1104 Ponce de Leon Blvd
Coral Gables, Fl 33134
(786) 804-3456 Direct Line
(305) 445-3721 Receptionist

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