Yesterday I saw a “planning ahead” question relating to taking into account US citizenship of a prospective spouse before your marriage in a country outside the US (and perhaps even within the US if you as a couple or a family would ever plan to live in another country than the US). Due diligence is better before walking down the aisle than finding out about how you will be caught up in matters of US citizenship-based taxation afterwards. A couple planning a wedding will not find this at all romantic or may not think that it would matter, but they will one day be glad they planned ahead — whatever the decision about the actual marriage. Good financial planning is necessary to protect your assets going into a marriage, as well as those resulting from joining financial accounts with your US spouse-to be. That prompted me to remind persons of another important area in which to think and plan ahead:
We would not readily think about what happens as we or a family member age with an unfortunate mental incapacity caused by aging, by stroke or some accident that results in a brain injury. I have often considered how I could possibly cope with the complexity of U.S. tax compliance, to say nothing of the continued and increasing costs for help with that compliance year after year, if I had not renounced my U.S. citizenship.
U.S. Department of State Foreign Affairs Manual Volume 7 Consular Affairs
7 FAM 1290
(U)7 FAM 1293 MENTAL COMPETENCY
a. Because loss of U.S. nationality occurs only when a would-be renunciant or person signing a statement of voluntary relinquishment has the legal capacity to form the specific intent necessary to lose U.S. nationality, cases involving persons with established or possible mental incapacity require careful review. This includes mental disability, mental illness, developmental impairment, Alzheimer’s disease, and similar conditions. It may also include cases of substance abuse.
b. A formal finding of mental incompetency by a court of competent jurisdiction, whether in the United States or abroad, precludes a finding that an individual has the requisite intent.
c. The requisite intent may also be found lacking if there is evidence that due to mental incapacity or impairment the individual does not understand the seriousness of renunciation, including its irrevocable nature and the major consequences that flow from it.
d. Voluntariness may also be an issue with persons who suffer from mental incapacity or impairment, as such individuals may be especially susceptible to the influence of others.
e. Parents, guardians and trustees cannot renounce or relinquish the U.S. nationality of a citizen lacking full mental capacity: A guardian or trustee cannot renounce on behalf of the incompetent individual because renunciation of one’s citizenship is regarded, like marriage or voting, as a personal elective right that cannot be exercised by another. Should a situation arise of the evident compelling need for an incapacitated person to relinquish citizenship, you are asked to consult CA/OCS/L for guidance.
f. Importance of reporting consular observations and relevant facts: An individual who behaves irrationally, belligerently or otherwise unusually may give you reason to question whether he or she has the mental capacity to formulate the intent required to lose U.S. nationality and/or whether he or she is subject to undue influence. You should document all the person’s actions and behavior and give your impression of his or her ability to understand the nature and consequences of renunciation. You also should observe and document the behavior of any individual who appears to be attempting to influence the individual to renounce.
g. While you are not making a clinical diagnosis, your description of the individual’s demeanor, behavior, statements, and your assessment of the person’s mental and emotional state are very important in making a determination whether the person is capable of formulating the intent to lose U.S. nationality and/or is acting voluntarily. This assessment must be sent to the Department (CA/OCS/ACS) as part of your consular officer opinion.
h. Accepting the renunciation or relinquishment: You may accept the renunciation or voluntary relinquishment of troubled citizens who insist on exercising their right to renounce. Acceptance does not constitute approval which, by statute (INA 358; 8 U.S.C. 1501) can only occur in the Department. If the Department concludes that the facts rebut the presumption of voluntariness, the Department may decline to approve the Certificate of Loss of Nationality. Permitting such a person to attempt to exercise his or her right to renounce may alleviate tension or conflict on the scene, while reporting the circumstances surrounding the act and the person’s demeanor will enable the Department to protect the citizenship of such an individual incapable of forming the requisite intent and voluntariness. The person seeking or claiming loss of citizenship has the burden of establishing knowing intent based on a preponderance of the evidence. Involuntariness may also be established by a preponderance of the evidence.
With the coming demographic avalanche of Boomers reaching their 60s and the over-80 population swelling, lawyers face a growing challenge: older clients with problems in decision-making capacity.
While most older adults will not have impaired capacity, some will. Clear and relatively obvious dementias will impair capacity, and the prevalence of such dementias increases with age. But what about older adults with an early stage of dementia or with mild central nervous system damage? Such clients may have subtle decisional problems and questionable judgments troubling to a lawyer. This handbook offers a conceptual framework and practice tips for addressing problems of client capacity, in some cases with help from a clinician.
Some might argue that without training in mental disorders of aging and methods of formal capacity evaluation, lawyers should not be making determinations about capacity. Yet lawyers necessarily are faced with an assessment or at least a screening of capacity in a rising number of cases involving specific legal transactions and, in some instances, guardianship. Even the belief that “something about a client has changed” or a decision to refer a client for a formal professional capacity evaluation represents a preliminary assessment of capacity.
Difficult Cases – Children, Young Adults, Persons With Diminished Mental Capacity
• Expatriation requires voluntary choice and understanding of consequences
• Parents cannot expatriate child, and guardian cannot expatriate ward
• Expatriation under age 18 is very difficult; young adults may also have problems
• Mental incompetence bars expatriation; mental illness or impairment, Alzheimer’s, dementia or alcohol/drug abuse raise issues
Have you considered this and decided how you and your family will handle such unplanned for life changes, especially as a *deemed* U.S. citizen?