Transcript of the above video: 

As the title of this video suggests, we are discussing legal capacity in the context of drafting what is sometimes referred to as a Living Will or a Medical Power of Attorney. Generally speaking, what are we talking about here?

We're talking about an instrument that in the event one becomes basically incapacitated for health reasons - they fall into a coma; they have a heart attack; they're not conscious or they may be conscious but they no longer have capacity, they don't have the ability to make their own decisions, it's possible to draft an instrument that allows for a loved one or another person to go ahead and make those decisions on their behalf. But the issue is whether, and the issue at play in this video is capacity at the time of the drafting and the formalization of such an instrument. 

You have to ensure that the person who is signing this documentation is of sound mind at the time they signed it. Why is that important? Because failure to do so - I shouldn't say failure - if someone is not of sound mind at the time they would sign a Power of Attorney such as this or an instrument such as this, in that event that they are incapacitated, that nullifies the agreement. If a judge later says look I knew this guy at this age or we saw this person in another matter, there's evidence to suggest that this person lacked capacity, if a Judge believes that person lacked capacity, if a Court I should say believes that that person lacks capacity, they can nullify the Will; they can nullify the Living Will, the Medical Power of Attorney whatever, and that can lead to real frustrations and problems. Now that being said, each case is different so the way that this can manifest itself is going to differ depending on different sets of circumstances.

That said, the thing to take away from this video, if you have capacity but you are worried about down the road issues with a Medical Power of Attorney and drafting that and making sure that that is all in compliance with relevant law so that it can be executed if and when it is needed, it's best to do that sooner rather than later.