When Is a Person Too Incapacitated to Sign a Will, Trust or POA?

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As an elder law attorney, I frequently advise adult children who suddenly realize that they must step in to help an aging parent. Perhaps Dad has fallen behind on his bills, or Mom is not making sound decisions when it comes to her medical care. Regardless of the reason, this transition of control over their very personal affairs can be challenging.

Unfortunately, the parent may be reluctant to sign a power of attorney (POA), empowering the child to make legal decisions on their behalf, because this step is frequently seen as a direct loss of independence. Combine that with the child’s reluctance to broach the subject out of fear that it may result in anger or offense, and you have a recipe for procrastination.

When families delay discussing these matters and fail to preplan, the results can be stressful and costly. In many cases, an attorney has to decide if a senior is legally incapacitated and therefore unable to sign a will, trust or power of attorney.

Wills

Many people are surprised to find out that a person with Alzheimer’s—even one currently under guardianship—may still be legally capable of signing a will. That’s because under the laws of most states, a person is competent to sign a will if they meet the following criteria at the time of signing:

  • They know the natural objects of their bounty (i.e., are aware of their spouse and children, if any).
  • They comprehend the kind and character of their property (i.e., know approximately their net worth and what kind of assets they own).
  • They understand the nature and effect of the act (i.e., realize that it is indeed a will they are signing and what that means).
  • They are able to make a disposition of their property according to a plan formed in their mind.

Thus, a lawyer must meet with the individual in question and try to discern the above. If the attorney determines that the client is incapacitated, they must refuse to prepare a will.

Power of Attorney Documents

A slightly different competency test is involved for signing a power of attorney. With POA documents, the individual must be capable of understanding and appreciating the extent and effect of the document, just as if they were signing a contract. For this reason, a person may be deemed competent to sign a power of attorney but not competent to sign a will.

If it turns out that the client is not competent to appoint a power of attorney for health care and/or finances, it may be necessary for the adult child or another family member to seek guardianship (also known as conservatorship).

Read: How to Get Guardianship of a Senior

Trusts

Similarly, a trust is sometimes deemed to be more like a contract than a will, so the mental capacity required to sign a trust may be less than that needed to sign a will. In recent years, states have recognized that living trusts are often utilized as substitutes for traditional wills. Therefore, some have enacted statutes that make the competency test for creating a trust the same as that for signing a valid will.

A Note on Mental and Physical Capacity

The mental capacity to sign a legal document should not be confused with the physical ability to sign one’s name. The law will permit a person to sign an “X” (known as a “mark”) that will suffice in lieu of a signature as long as it is properly witnessed. In addition, if an individual is incapable of making a mark, they can direct someone else to sign on their behalf.

Of course, the best advice is not to wait until it may be too late to engage in proper legal planning. If possible, make a point of having these conversations with family members while they are still of sound mind and able to comprehend exactly what they’re signing and why. These discussions can be difficult, but an experienced elder law attorney can help with this process.

Read: How to Select an Elder Law Attorney

K. Gabriel Heiser is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.

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26 Comments

Since you can you can sign a will with alzheimer's under guardianship, How about asking to live with you daughter when you are under guardianship? My mother is in an ALF, she wants to leave and live with me the guardian will not let her she has no reason not to, I am competent and very dependable. The guardian is isolating my mother, falsely accusing, threatening and has not taken care of my mother's eyes, teeth. My mother has no quality of life at the Alf, she just sits in her room on her bed most of the time. I am only allowed to visit 1 day a week for a few hours, and call 2 days a week. Apparently because I asked questions to the guardian about my mother's care that is when she started accusing, etc. What to do? I suppose just get an attorney !
I did not know anyone could sign a will that is under guardianship who has Alzheimer's disease. Maybe you should ask the guardian to turn over the guardianship to you. Have you tried asking the court? Why are you only allowed to visit two days per week? If you cannot ask the court you should get an attorney. An attorney can help you.
Thanks for your reply Kedwards460! As I mentioned under another question, Durable Power of Attorney is recommended by the visiting law school students at mom's physician's office for when the elder is incapacitated. It is to be done when elder is still cognizant. However, the subject matter is making her bitter. First thing in the morning, she asks where her will is. She signed the health care directive 2 years ago, but this DPOA and requests for changes in healthcare directive, mistakes & updates in will, and now applying for DPOA have been making her mean. I try to take it in stride, because there are times when she says she had no idea she was so mean. We still have a long way to go.The 87yr old father-in-law passed last month, and I noticed everyone had to fill out a "contract not to probate" at the cemetery. So I guess I will just do the best I can & leave the rest to the attorney someday. Your question about Medicaid. It is still SLMB at this time. However, we are getting close to changing over in the coming year. Thanks so much for the sympathy because I am married but alone in this.