Red Flags for Lack of Capacity

It is unfortunate that as we get older, our mental abilities decline. Some people decline to the point that they can no longer take care of themselves or manage their finances. When a person’s cognitive ability declines to the point that they are considered unable to make decisions or be held responsible for them, they are said to “lack capacity” and can no longer execute legal documents such as a will or trust.

When an elder gets to the point where they lack capacity, they rarely can help themselves. It is up to their loved ones to recognize when this happens and take steps to get the elder the help they need. So how do you recognize when an elder needs help?

Every case is unique, and one person’s circumstances may differ from someone else’s. Still, here are some red flags to watch out for that could be a sign a person has lost capacity:

  1. They forget where and when they are. So if you have a loved one who can’t remember what day it is or doesn’t recognize a room they’ve been in a hundred times, that’s a good sign they don’t have the ability to decide things in the here and now.
  2. They can’t pay attention. If their mind is constantly wandering and can’t focus on anything longer than five seconds, it’s doubtful they have enough concentration to complete a legal document. (Mind you, some people have better attention spans than others. So someone could have a naturally poor attention span and still be ok—ooh, is that a squirrel outside my window?)
  3. They can’t discuss complex subjects. A person doesn’t have to be a philosopher or theoretician to have capacity. Still, if you can’t have a conversation about anything except what to have for dinner, there may be a problem.
  4. They can’t reason or plan. Of course, some people are more organized and goal-oriented than others. That being said, a person who can’t follow a thought to its logical conclusion, or can’t make a plan and carry it out, likely can’t think through what their estate plan should look like.
  5. They can’t control their emotions. The ability to regulate and manage emotions is a higher-level brain function. Of course, everyone has a bad day now and then where their emotions get the better of them (if you don’t, please tell me your secret). But when someone’s emotions are constantly getting the better of them, or they are persistently experiencing one emotion that is way too intense for their circumstances, that may be a sign that their mental abilities are declining.

If you have a loved one that shows a mild case of one of these red flags, they’re probably all right. However, when you see multiple flags, and it’s getting progressively worse, that’s when you should start getting concerned. If you think your loved one may have already lost capacity, you should probably have them evaluated by a professional (i.e., someone who can make a medical diagnosis, not a lawyer).

If you have questions about this article or are concerned about if your loved one can make changes to their will or trust, please reach out to me at

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.