In my day-to-day practice of law, I frequently find myself having to determine whether my clients possess sufficient mental capacity to sign the documents I have drafted for them.

"Competency," in this sense, refers to one's ability to understand the consequences of signing a legal document. If, in talking with my clients, it is obvious that their mental capacity is lacking, I cannot proceed with the execution of their documents. These meetings and conversations can be difficult.

I hope this article will present a picture of what an attorney looks for in determining client competency and why it is so important for clients to handle their affairs before they lose their mental faculties.

The first step in finding an attorney to draft a document is for the client to make the initial contact. With elder adults, it is not unusual for a relative to contact an attorney on the client's behalf, asking, for example, for certain estate-planning documents to be drafted. It is a red flag to an attorney if the relative dominates the conversation, tells the attorney exactly what the client wants, and then downplays the importance of a meeting with the attorney and client.

At this point the attorney suspects that either the client is not competent but wants to get the document drafted and executed or the relative is trying to have the client sign something that benefits the relative against the client's wishes. Regardless of the motive, the attorney must be extremely cautious.

The attorney should always meet and talk with the client before a document is executed. If there is any question as to competency, the attorney should meet with the client alone, asking a series of questions to determine whether the client understands the document and whether the document will meet the client's wishes. The client should be able to express this verbally.

I have had to ask relatives to leave the room. As soon as the relatives leave, it becomes clear whether the client is competent. On one occasion, when I asked a client's sister to leave the room, it quickly became apparent that my client was not competent to sign a power of attorney. She told me she did not need a power of attorney because a deceased relative, who was an angel, was going to make her decisions for her if she became incompetent. Clearly, this client lacked sufficient mental capacity to sign the document I had prepared, so I politely ended the meeting.

It is possible for people to phase in and out of competency. For example, at the first meeting with the attorney the client might be perfectly clear about his or her wishes. Two weeks later, the intent may seem fuzzy and the client might appear confused. Many factors could cause this confusion, including medications, skipped medications, the time of day, or even whether the client has eaten recently. If the confusion is temporary and caused by one of these factors, the appointment with the attorney should be rescheduled to find another time when the client will be fresh and capable of signing the documents. If, however, the diminished capacity is permanent, the attorney must not allow the execution of the documents.

What is the lesson here? It is imperative that you have all important estate-planning documents drafted sooner, rather than later. You never know what might happen to cause you to have diminished capacity.

You could be dealing with a slow-progressing disease like Alzheimer's, when it is difficult to draw a line between competency and incompetency. You should always get your affairs in order soon after a diagnosis like this.

You could also suffer from a life-changing event like a stroke or a terrible car accident. One day you could be perfectly fine and the next day you might be in a coma. You want your affairs in order so loved ones are saved the trouble and expense of trying to guess at your wishes.

What are the consequences of not having important documents signed and executed before you become incompetent? It depends on the type of document. If you do not have a power of attorney (which selects an agent to make decisions for you when you are no longer able to do so), a guardianship case may need to be filed in probate court. There, if a judge determines that you are not competent, the judge will appoint a guardian to make decisions for you. This can be expensive, lengthy, and stressful. Your relatives will be required to hire an attorney, and a guardian ad litem would be hired to protect your interests. And of course there are also those filing fees with the court.

If you neglect to execute a last will and testament and you have not made other legal arrangements to distribute your property, you will die "intestate." Then a probate case will be opened and your property will be distributed according to statute, rather than your wishes.

If you neglect to execute a living will, your end-of-life decisions may not be carried out. Your life may be prolonged and your quality of life may suffer.

As you can see, if you do not take steps to have appropriate documents drafted and executed while you are competent, there may be severe, unintended consequences. Attorneys are bound by an ethical duty to ensure that only those who are competent are executing legal documents. So get your affairs in order now.