Can I Order a Mental Evaluation for a Grantor

As an estate planning attorney and CPA with over 35 years of experience, I’ve seen firsthand how quickly a seemingly solid estate plan can unravel when questions arise about a grantor’s capacity. I recently had a client, David, whose mother amended her trust, significantly benefiting her new caregiver. David was understandably suspicious, but lacked concrete evidence. He’d waited too long to act, and when he finally sought to challenge the amendment, the statutory deadline had passed. The cost? Losing a substantial inheritance and years of legal fees fighting a losing battle. This scenario highlights a critical but often overlooked issue: proactively assessing and documenting a grantor’s mental capacity.

Many clients ask if they can simply “order” a mental evaluation. The reality is more nuanced than that. You can’t unilaterally impose an evaluation, especially if the grantor is still living and actively managing their affairs. However, you can take steps to gather evidence of capacity, and in certain situations, a formal evaluation may be necessary – and legally obtainable. The key is understanding the legal standards and ethical considerations involved.

What Constitutes Legal “Capacity” for Estate Planning?

Capacity isn’t an all-or-nothing proposition. It’s not about whether someone is declared legally “insane.” Rather, it’s a functional standard. To have the capacity to create or amend a trust, a grantor must understand:

• The nature of the document: They must grasp that they are signing a legal instrument that will distribute their assets after death.
• The property involved: They need to have a general understanding of the assets they own.
• The beneficiaries: They must know who they are leaving their property to.
• The effect of the disposition: They must understand how the trust will impact their beneficiaries.

A diagnosis of dementia or cognitive impairment doesn’t automatically mean a grantor lacks capacity. The question is whether they meet these requirements at the time the trust document was signed or amended. Proving this, however, can be exceptionally difficult after the fact.

How Can I Gather Evidence of Capacity?

While a formal evaluation isn’t always immediately necessary, proactive documentation is crucial. As a CPA, I always emphasize the importance of contemporaneous records. Here’s what I recommend to clients:

• Detailed Notes: If you witness the grantor signing documents, record your observations about their demeanor, memory, and understanding.
• Video Recordings: With the grantor’s consent, record meetings where they discuss their estate plan. This can provide invaluable evidence of their understanding.
• Letters and Emails: Preserve any correspondence where the grantor expresses their wishes and demonstrates coherent thought.
• Medical Records: If the grantor has existing medical conditions, obtain releases to access relevant records. However, be mindful of HIPAA regulations.

These records create a baseline. If concerns arise later, you’ll have something to compare against.

When is a Formal Mental Evaluation Appropriate?

A formal evaluation by a qualified professional (neurologist, psychiatrist, or neuropsychologist) is often necessary when there are strong indications of diminished capacity. These indications might include:

• Significant Cognitive Decline: Noticeable memory loss, confusion, or difficulty with reasoning.
• Changes in Behavior: Drastic shifts in personality or judgment.
• Suspicious Circumstances: A sudden and unexplained change in the estate plan that benefits a new acquaintance or caregiver.

If you suspect undue influence, a formal evaluation is particularly critical. Probate Code § 21380 creates a presumption of fraud if a care custodian benefits from a trust amendment during their service, shifting the burden of proof to them. A neuropsychological evaluation can provide objective evidence of the grantor’s cognitive state and help establish whether they were capable of making independent decisions.

Can I Petition the Court for an Evaluation?

Yes, but it’s not simple. You can petition the court for a conservatorship or to appoint a guardian ad litem to investigate the grantor’s capacity. The court can then order a mental evaluation. However, this is a serious legal action with significant implications for the grantor’s rights. The court will require compelling evidence to justify such an intrusion.

Furthermore, time is of the essence. Probate Code § 16061.7 dictates that once a trustee serves the mandatory § 16061.7 Notification, a strict 120-day clock begins; if a beneficiary fails to file a contest within this window, they are essentially barred from challenging the trust’s validity forever. Don’t delay in seeking legal counsel if you have concerns.

What About Digital Evidence?

In today’s world, digital evidence often plays a crucial role in capacity disputes. Emails, text messages, and social media posts can reveal a grantor’s cognitive state and thought processes. However, obtaining this evidence can be challenging. Without specific RUFADAA authority (Probate Code § 870), a trustee or beneficiary may be legally blocked from subpoenaing critical digital evidence needed to prove undue influence or incapacity.

Disputes Over Assets & AB 2016

When disputes arise over assets that were not properly titled in the trust, particularly real property, it’s essential to understand the changing landscape of California law. For deaths on or after April 1, 2025, if the dispute involves a home valued up to $750,000 that isn’t titled in the trust, a ‘Petition for Succession’ under AB 2016 (Probate Code § 13151) may be a faster resolution than a full Heggstad trial. Remember, this is a “Petition” (Judge’s Order), not an “Affidavit.” This streamlined process can save significant time and expense, but it’s crucial to consult with counsel to determine the best course of action.

What determines whether a California trust settlement remains private or erupts into public litigation?

The advantage of a California trust is control and continuity, but this relies entirely on accurate funding and disciplined administration. Without clear asset titles and strict adherence to fiduciary standards, a private trust can quickly become a subject of public litigation over mismanagement, capacity, or undue influence.

To ensure the plan actually works, you must move assets correctly using funding and assets, and ensure all players understand their roles by identifying the key participants in trusts to prevent confusion when authority transfers.

California trust planning is most effective when the structure is matched to the specific family goal and assets are fully funded into the trust name. When administration is handled with transparency and adherence to the Probate Code, the trust can fulfill its promise of privacy and efficiency.

Verified Authority on California Trust Litigation & Disputes

• The 120-Day Rule (Probate Code § 16061.7): California Probate Code § 16061.7
  The most critical statute in trust litigation. It establishes the 120-day deadline for contesting a trust after the notification is mailed. Missing this deadline usually ends the case before it starts.
• Caregiver Presumption (Probate Code § 21380): California Probate Code § 21380
  This statute protects seniors by presuming that gifts to care custodians are the result of fraud or undue influence. It is the primary weapon used to overturn “deathbed amendments” that favor a caregiver over family.
• No-Contest Clauses (Probate Code § 21311): California Probate Code § 21311
  Defines the strict limits on enforcing penalty clauses. It explains that a beneficiary can only be disinherited for suing if they lacked “probable cause” to bring the lawsuit.
• Petition for Instructions (Probate Code § 17200): California Probate Code § 17200
  The “gateway” statute for most trust litigation. It allows a trustee or beneficiary to petition the court for instructions regarding the internal affairs of the trust, from interpreting terms to removing a trustee.
• Asset Recovery “Backup” (AB 2016): California Probate Code § 13151 (Petition for Succession)
  Effective April 1, 2025, this statute provides a streamlined path (Judge’s Order) to resolve disputes over ownership of a primary residence valued up to $750,000, often avoiding costly Heggstad litigation.
• Digital Discovery (RUFADAA): California Probate Code § 870 (RUFADAA)
  Essential for modern litigation. This act governs who can access a decedent’s digital communications—often the “smoking gun” evidence in undue influence or capacity trials.