When is a someone Too Incapacitated to Sign a Will, Trust, or Power of Attorney?

As an elder law attorney I am often faced with adult children who perceive that they plainly have to take over for an aging parent. Maybe the parent is falling behind on bills or has issue dealing with the medical establishment. It is always hard for a "child" to come to be 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 often seen as an admission that the parent may actually need such help. Consolidate 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.

Financial Power Of Attorney

Let's start with wills. Many population are surprised to find out that a someone 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 someone 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 almost his net worth and what kind of assets he owns)
• understands the nature and follow of his act (i.e., realizes that it is actually a will he is signing, and what that means)
• is able to make a disposition of his property agreeing to a plan formed in his mind

When is a someone Too Incapacitated to Sign a Will, Trust, or Power of Attorney?

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Thus, the lawyer must meet with the parent or spouse and try to watch the above. In some cases, the lawyer may decide that the individual is too incapacitated and thus the lawyer must refuse to get ready a will.

A slightly distinct test is involved for signing a power of attorney. Here, the individual must be capable of comprehension and appreciating the extent and follow 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 covenant 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 capability to sign one's name. The law will permit a someone 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 inherent for the individual to make, then the individual can direct someone else to sign on his or her behalf.

Of course, the best guidance is not to wait until it may be too late, but to have those conversations with house members while they are still competent and able to perceive exactly what they're signing and why.

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