Private Law Theory

ABSTRACT
… This Article argues that the mental capacity doctrine in prevailing American law is ill-suited for the era of aging population. In theory, the doctrine grants mentally-incapable individuals a power to choose whether to avoid their transactions. In reality, that power is usually exercised by claimants who expect to inherit from incapable individuals. Prevailing doctrinal theories overlook the possibility that the claimant may seek to avoid a transaction to increase her expected inheritance, rather than to advance the interests of the incapable individual. As a result, the mental capacity doctrine may operate to avoid transactions that actually had benefited potentially incapable seniors and reflected their testamentary intent. This harms many seniors by unduly limiting their ability to gift their close relatives and friends, reward informal caregiving, and recruit their preferred caregivers …

Ben Chen, Elder Financial Abuse: Capacity Law and Economics, Cornell Law Review volume 106 (13 November).

First posted 2021-11-15 11:00:01