Conservatorship, Capacity, and Crystal Balls
Volume 87, No. 1, Fall 2014
By Ralph C. Brashier, Cecil C. Humphreys Professor of Law, The University of Memphis [PDF]

Courts have often stated that the imposition of a conservatorship over a person’s assets is not a determination that the individual lacks testamentary capacity, because the capacity required to manage one’s assets is greater than that required to devise them. Nevertheless, some statutes and judicial orders now prospectively deprive a conservatee of will-making ability, regardless of the conservatee’s actual testamentary capacity at the time of will execution. This Article demonstrates that such statutes and orders are inconsistent with modern conservatorship reforms, which seek to impose the least restrictive alternative needed to promote the conservatee’s best interest, and also with venerated wills principles, which preclude predictions about an individual’s future ability to devise. In particular, this Article demonstrates that such crystal ball pronouncements are improper not only because they single out conservatees for infantilizing treatment, but also because they ignore obvious and well-established less intrusive options that are adequate to quell concerns about wills executed by conservatees.