Robert Whitman


Clients consulting with elder and estate planning attorneys for estate planning documents will likely receive a "package" of five documents: a will, a trust (revocable or irrevocable), a health care power, a durable power of attorney, and a living will. Although capacity standards have varied for each of the items in the "package," an informal survey of American College of Trust and Estate Counsel (ACTEC) members reveals that practitioners do not pay attention to these distinctions when they create the "package." Practitioners are either unwilling to accept the engagement for lack of competence or willing to overlook the capacity distinctions when accepting the engagement. This article thus advocates for a uniform test for capacity when an attorney considers preparing the "package" for a client.



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