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

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As an elder law attorney I am oftentimes faced with adult children who realize that they plainly have to take over for an aging parent. Maybe the parent is falling behind on bills or has trouble dealing with the curative establishment. It is always hard for a "child" to come to be the caretaker of the once-powerful and dominant parent.

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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 oftentimes seen as an admission that the parent may positively need such help. Combine that with the child's reluctance to bring up the field 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 settle if a parent (or spouse) is too incapacitated legally to sign a will, trust, or power of attorney.

Let's start with wills. Many citizen are surprised to find out that a man 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 man 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 succeed of his act (i.e., realizes that it is positively a will he is signing, and what that means) is able to make a routine of his property according to a plan formed in his mind

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

A slightly distinct test is complicated for signing a power of attorney. Here, the individual must be capable of insight and appreciating the extent and succeed 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 vital thinking 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 new state statutes have made the test for a trust the same as that set forth above for a will.

The thinking capacity to sign the document should not be confused with the corporal potential to sign one's name. The law will permit a man 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 man 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 realize exactly what they're signing and why.

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