The principles surrounding capacity to create a personal directive or enduring power of attorney are less developed or documented than those related to creating a valid will. This paper specifically addresses issues surrounding ensuring capacity for those making PDs and EPAs. The author examines what to do if capacity is at issue and good practice with respect to taking notes and gathering evidence to determine capacity. He offers valuable insight and tips into assessing capacity.

This paper was presented at LESA’s Drafting Personal Directives and Enduring Powers of Attorney program held in December, 2013.