As an elder law attorney I am frequently faced with adult children who realize that they simply have to take over for an aging parent. Maybe the parent is falling behind on bills or has trouble dealing with the medical establishment. It is always hard for a "child" to become the caretaker of the once-powerful and dominant parent.
Unfortunately, the parent may be reluctant to sign a power of attorney empowering the child to make legal decisions for the parent, since that act is frequently seen as an admission that the parent may actually need such help. Combine that with the child's reluctance to bring up the subject for fear that it may anger the parent, and you have a recipe for procrastination. Hence the all-too-common situation where the attorney has to decide if a parent (or spouse) is too incapacitated legally to sign a will, trust, or power of attorney.
Let's start with wills. Many people are surprised to find out that a person with Alzheimer's or under a guardianship may still be legally competent to sign a will. That's because under the laws of most states, a person is legally competent to sign a will if at the time of the signing he or she meets the following tests:
knows the natural objects of his bounty (i.e., is aware of his spouse and children, if any)
comprehends the kind and character of his property (i.e., knows approximately his net worth and what kind of assets he owns)
understands the nature and effect of his act (i.e., realizes that it is indeed a will he is signing, and what that means)
is able to make a disposition of his property according to a plan formed in his mind
Thus, the lawyer must meet with the parent or spouse and try to discern the above. In some cases, the lawyer may decide that the individual is too incapacitated and thus the lawyer must refuse to prepare a will.
A slightly different test is involved for signing a power of attorney. Here, the individual must be capable of understanding and appreciating the extent and effect of the document, just as if he or she were signing a contract. Thus, the parent may be competent to sign a power of attorney, but not competent to sign a will.
A trust is sometimes deemed to be more like a contract than a will, so that the necessary mental capacity needed to sign a trust may be less than that needed to sign a will. Recognizing that in today's world living trusts are most often utilized as "will substitutes," some recent state statutes have made the test for a trust the same as that set forth above for a will.
The mental capacity to sign the 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, so long as properly witnessed, will suffice just the same as a signature. In addition, if even a mark is not possible for the individual to make, then the individual can direct someone else to sign on his or her behalf.
Of course, the best advice is not to wait until it may be too late, but to have those conversations with family members while they are still competent and able to comprehend exactly what they're signing and why.
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© 2007 by K. Gabriel Heiser
Attorney K. Gabriel Heiser has devoted his legal practice to Medicaid planning, elder law, and estate planning for the last 23 years.
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