The Issue Of Capacity In The Elder Mediation Process

The issue of capacity is a critical threshold issue in the elder mediation process. The legal standard for determining “capacity” varies, depending upon the transaction in issue. For example, testamentary capacity (the capacity to make a valid will), is said to exist if, at the time the will is made, the testator is able to comprehend in general terms the property comprising his or her estate, the natural objects of his or her bounty, the disposition he/she is making by executing the will, and how each of these factors relate to the others.  Restatement (Third) of Property: Wills & Other Donative Transfers § 8.1 (2003).

Contractual capacity (the capacity to enter into a contract) is said to exist if the person reasonably appreciates the effect and consequences of the transaction, and is capable of exercising free will with respect to the contract. 17A Corpus Juris Secundum Contracts §141 (2008). Donative capacity, or the capacity to make a gift, exists if the donor is able to understand the “nature and effect of his or her act.” 38 American Jurisprudence 2d §13 (2008).

In contrast, a guardianship action is predicated upon a finding by a court that the individual in question is “incapacitated.” The legal standard for determining incapacity is based upon the statutory and common law of a particular state, and there is no universal legal definition of “incapacity”.  Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13 NAELA Quarterly 3 (Summer 2000). However, the general standard is that a guardianship is appropriate in cases in which a person, because of mental or physical illness or disability, lacks sufficient ability or understanding to make decisions regarding his or her affairs, or to communicate those decisions to others. Frolick, L., Science, Common Sense, and the Determination of Mental Capacity, 5 Psychology, Public Policy, and Law 41 (Mar. 1999).

The elder mediation process envisions the possibility for active participation by an elder, even in cases of diminished capacity. The fact that an elder may be physically or mentally disabled, forgetful, irrational, delusional, or suffering from dementia does not prevent that elder from participating in the mediation, particularly with the assistance of a geriatric care manager, as necessary.

In fact, by designating a geriatric care manager as the elder’s advocate for purposes of the mediation, participation by the elder is still guaranteed, even in the case of the elder’s diminished capacity or total incapacity.