WHAT IS.....CAPACITY?

Signing a contract, making and executing a Last Will, or making medical decisions, requires that an individual have legal capacity.  Anyone under the age of eighteen in Washington lacks legal capacity, no matter how intelligent they may be. 

For adults, it is also not a mere intelligence or memory test.  There is no simple measure of passing or failing a specific test on a certain day.  Many factors can impact one’s capacity, and for many people as they age, capacity is gradually lost over a very long period of time.  Therefore, it is difficult for an attorney to make a snap decision that a client has capacity to make a Will, create a trust, execute powers of attorney granting financial and medical management to others, or enter into contracts.

Washington guardianship law defines incapacity as the demonstrated inability to manage one’s affairs over time.  Therefore, the very temporary inabilities often associated with dehydration, infection, a recent fall, etc. will not suffice to have an individual declared incapacitated.

Rather, legal incapacity may be because of physical frailty, cognitive issues, or – more often – a combination of these. In Washington state, capacity is presumed.  RCW 11.130.037; RCW 71.32.040.  Therefore, it is no easy task to have a person declared to lack capacity, and usually requires a hearing with evidence resulting in a court order, or the individual’s own assessment that they can no longer manage, and a request for activation of a protective arrangement as a result.  RCW 11.130.035. 

Medical incapacity is the inability to understand information presented and make decisions based upon that information.  It is similar to, but not the same, as legal incapacity.  Legal incapacity, however, is broken into two parts: (1) incapacity as to a person’s medical and physical concerns; and (2) a person’s financial affairs and asset management.  RCW 11.88.010 (as of Jan. 2022, refer to RCW 11.130).

For a determination that a person is disabled due to incapacity, DSHS also considers substance abuse disorders as a factor in the determination.  Numerous guidelines factor into the determination of whether an individual meets the criteria for public assistance as a result of incapacity.  A good starting point to research this is found in the Washington Administrative Code (WAC) 388-447-005.