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.
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).
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.