Mental incapacity: what is it?

Grandpa is in his 80s, Grandma died not too long ago, and since then he has spent most of his life savings on his new companion, buying her expensive gifts. His decisions are impulsive and he’s never spent extravagantly before. Might he be mentally incapacitated? Great Aunt Mary sent almost all of her life savings to a small charity that promotes her favorite flower. Was that a good financial decision? Your friend Alice suffered a stroke, has been forgetting things a lot lately, is bouncing checks, late on all of her bills, and is withdrawing the bulk of her 401k but thinks it is a traditional savings account. Is she mentally incapacitated?

Most people know someone who has started making questionable financial decisions, and the instinct is to assume mental incapacity–do Grandpa, Great Aunt Mary, and Alice know what they are doing? Does management of their finances and assets need turned over to someone else?

Ohio law defines incapacity as where “the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.” How do you apply this definition to real-life situations?

Whether someone has “capacity” to perform a certain act is determined by looking at the person at the time of the act, versus looking at the act. There is what some call “the right to folly,” or the right to make bad or foolish decisions. Has Grandpa never bought expensive things but wants to now and does not care about how much he spends? Great Aunt Mary is not incapacitated just because she might be acting foolishly with her finances, even if it entails sending all of her savings to a small charity that promotes daffodils. We all have a right to make bad decisions, or what others would say are foolish decisions.

If bouncing a check, being late with a few bills, or making questionable financial decisions isn’t incapacity, then what is? Having a pattern of this behavior might evidence mental incapacity. Misplaced funds, a recent history of bouncing checks, unexplained gifts, and being unduly influenced by others could all signal incapacity. Alice above is the example that strongly suggests incapacity, and she should be evaluated by a physician–her behavior seems erratic, and she doesn’t appear to know what she is doing. Did Grandpa get coerced into handing over his finances, or into buying gifts? Did Great Aunt Mary hand over her life savings after repeated phone calls to do so from the charity, and she has never had an interest in daffodils before? Then purposeful “folly” might instead be susceptibility and undue influence, and mental incapacity. Therefore, the legal issue is not whether a person has made the wrong decision, but the capacity of the person making the decision.

If there is mental incapacity, how one proceeds depends upon the facts of each situation. Mental incapacity in one realm does not equate to it in a different realm. The necessary capacity to sign a will is less than signing a deed. Perhaps a full guardianship that takes away all right to make decisions is not needed where a conservatorship (court-appointed management of finances) would suffice. If a certain level of competence exists, that person could sign a financial power of attorney that designates someone to handle finances or a medical power of attorney to make healthcare decisions.

There is a difference between mental incapacity and making bad decisions. Despite concern from others for bad decisions or “foolish” behavior, we are presumed competent unless proven otherwise.

Email or call me if you have any questions about mental incapacity in the context described in this post. See my website at for my contact information.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s