Law Practice
Nov. 18, 2016
Capacity to transact often is obvious, but not always
Establishing diminished capacity to enter into a binding contract should be based on a sound conceptual foundation and consistent procedure — rather than on intuition alone. By Herbert A. Stroh
Attorneys representing an aging clientele are routinely faced with the issue of whether a client has sufficient capacity to make the decision at hand. Although the issue is more acute for estate planners, every attorney needs to assess whether a client has capacity to retain counsel and to make a decision regarding the transaction in question. Capacity also may arise in litigation as a challenge or defense of an instrument.
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