Competency in California

In my practice, this is important.  I certainly do not want to be preparing Estate Planning documents for clients that are incompetent.  By definition, someone who is incompetent cannot be signing a Trust, a Will, a Power of Attorney, an Advance Health Care Directive, or any other legal or Estate Planning document.

In California, our probate code sets forth the criteria to be used in determining whether someone is incompetent.  (The probate code deals with a lot more than Wills and includes Living Trusts.)  As an Attorney who prepares Estate Planning documents, it is important for me to be confident that the client is competent.  This is true, because some day I might be required to give a deposition explaining why I believed the client was competent at the time of the documents execution.

Generally speaking the party seeking to invalidate the Living Trust or Will has the burden of proof.  They must demonstrate that at the time of executing the document the person either:

-          Did not understand what he or she was signing; 

-          Did not know what he or she owned;

-          Did not know who is being affected by his or her actions; or

-          Suffered from a deficit in a mental function and there is evidence of a correlation between the deficit(s) and the acts in question

As someone who is also involved in probate litigation, I get a fair number of calls from people who want to challenge Wills and Trusts.  Our firm works with people from throughout the state of California.  I certainly am interested in potentially representing these people, but I also need to be convinced that they have a valid claim.