What You Should Know About Determining Capacity in Ohio


One definition of “capacity” refers to the maximum amount/number that something can contain (e.g., a freezer’s capacity is 1.1 cubic feet; the capacity of a public room is 140 people). “Capacity” also describes an ability to do, experience or understand something (e.g., she has the capacity to be a great athlete). The law considers “capacity” when determining whether a person can perform certain tasks or enter into certain agreements. 

Q: What is specific capacity?
A: A person’s capacity is at issue when questions are raised about his or her ability to perform a certain transaction. To have specific capacity, the individual should be able to communicate a choice, factually understand the issues involved and appreciate the particular situation and its consequences. 

Q: What is legal capacity?
A: The issue of legal capacity is most often raised when determining whether a person has sufficient mind and memory to make a last will and testament or a trust agreement, or enter into another type of agreement that names a beneficiary. A person must meet the test for legal capacity to validly enter into such an arrangement. (Note: In Ohio, only an adult [18 years of age or older] has the legal capacity to make a will.)

Q: My sister thinks our father may not have the legal capacity to make a will, but I disagree. How would an Ohio court determine our father’s legal capacity?
A:  Ohio’s test for legal capacity requires your father, at the time he is making a last will and testament, trust or other beneficiary designation, to 1) understand the nature of the business; 2) comprehend generally the nature and extent of his property; 3) hold in his mind the names and identity of those who have the natural claim on his bounty; and 4) be able to appreciate his relationship to members of his family. 

Q: Can people who suffer from dementia, alcoholism or drug dependency, physical disabilities, or mental health issues such as depression have sufficient capacity to make a will or a trust?
A: Yes. Medical conditions do not necessarily equal incapacity. Many causes of impairment are temporary or may not impact the person’s ability to make a valid will, trust, or other beneficiary designation. For example, a person with a brain tumor still may meet the test for legal capacity to make a will.

Q: Does legal capacity mean the same thing as competency?
A: No. The competency question arises in connection with the management of a person’s affairs. For example, if your father is capable of making medical decisions or managing his finances, then he is presumed competent. However, if, due to a cognitive or physical impairment, there is a risk that he may harm himself or others, then you may want to start a guardianship proceeding in an Ohio probate court, asking the court to determine if your father is “incompetent” and needs a guardian.

Q: How would the court determine if our father is incompetent?
A: In Ohio, the court would determine that your father is incompetent if he is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking care of himself or his property. A qualified professional must give the court an opinion about his condition, and your father’s incompetence must be proven to the court by “clear and convincing” evidence.

Q: If the court decides our father is incompetent, might he still have the legal capacity to make a will?
A: Yes. Even if your father has been determined to be incompetent, he still may have the required legal capacity to make a will, because the test to determine incompetency is different from the test to determine legal capacity.  

Q: Could our father’s legal capacity change from day to day?
A: Yes. Your father’s legal capacity would be assessed at or around the time he is making a will or entering a trust agreement, etc. Because his mental condition may fluctuate, your father may not be able to recall the general nature or extent of his bounty on a bad day, but on a good day, he may be able to understand and assimilate the necessary information to be clear about his intention to make a will, trust or other form of beneficiary designation. If his mental operations fluctuate, then your father should be carefully evaluated to determine if the decision-making process and legal capacity are present before he signs any such documents.


This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cleveland attorney Adam M. Fried of Reminger Co., L.P.A. 

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.



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