I am forwarding a link to a new discussion, How Can You Tell If Your Client Has Diminished Capacity, by Carolyn Rosenblatt, RN, Elder Law Attorney, & Dr. Mikol Davis, Gerontologist co-founder of AgingInvestor.com.
Here is the link to the discussion – I believe you will find it useful – there really isn’t enough discussion about these topics, and I would also like to see more education for Judges on these topics: Click Here
This is a difficult topic both factually and from a legal perspective. It really has to be evaluated on a situation by situation basis. In my cases and from a legal perspective the issue would primarily be whether the client has sufficient mental capacity to understand, ask about and discuss, evaluate, and make decisions about the issues and options. And, diminished capacity also can relate to possible undue influence, fraud, and elder and dependent adult abuse issues, and whether the client has the ability to resist and does actually and effectively resist and defend herself or himself from wrongful or undue actions, pressure or persuasion by other people? There are laws (statutes) and cases discussing these issues, but it does come down to a situation by situation basis as every case is different.
Best to you, David Tate, Esq. (and California inactive CPA)