As an elder law attorney, I am often contacted by an adult child who is caring for a parent displaying signs of dementia or recently diagnosed with Alzheimer’s Disease.  The parent may be having trouble paying bills, remembering appointments, or dealing with the medical establishment.  The child quickly learns that he or she has no legal authority to handle the parent’s affairs because the parent has not previously executed a Will, Durable Power of Attorney or Health Care Proxy empowering the child to make decisions for the parent.  The all important question that arises in these cases is whether the parent is still competent to sign legal documents.

To have legal capacity to execute a document requires that the person signing have sufficient mental capacity to understand and appreciate the implications of the document.  A person who lacks legal capacity cannot, for example, enter into a contact, give a power of attorney, make a will, consent to medical treatment, or transfer property.  Mental capacity to sign a document, however, should not be confused with a physical ability to sign one’s name.   Being physically incapacitated, such as being paralyzed, does not mean that person is legally incapacitated or that she is unable to understand the documents and its implications.  The law will permit a person to sign an “X,” or a mark, that, so long as properly witnessed, will suffice just the same as a signature.  Further, even if the person is unable to make a mark, she can direct someone else to sign on her behalf.

In addition, the fact that a person has dementia or Alzheimer’s disease does not necessarily imply that the person lacks sufficient capacity to sign legal documents.   The standards for capacity to execute legal documents differ depending on the person’s abilities and the complexity of the document.  On one side, the person’s abilities may change substantially from day to day or even during the day depending on the course of her illness, fatigue and the effects of medication.  For example, your mother may have some memory problems and cognitive difficulties on one day but appear to be mentally sound on another day.  Since the legal ability to create a binding legal document depends on the state of mind of the person creating the document, she may be capable of signing a document on a “good day.”   On the other side, greater understanding is required for some legal activities than for others.  For example, the capacity required for entering into a contract is higher than that required to execute a Will.

To make a Will, a person must have “testamentary capacity.”  A person has testamentary capacity if at the time of the signing she (1) knows those persons who would naturally have some claim to her remembrance; (2) comprehends the kind and character of her property; (3) understands the nature and effect of making a Will; (4) and is able to make a disposition of her property according to a plan formed in her mind free from delusion which might influence the disposition of property.  This is a relatively low threshold to meet.  The fact that the person does not remember the Will signing the following day and does not have sufficient capacity to execute a Will at that time does not invalidate the Will if she understood it when she signed it.

There is not a clear test involved for signing a Power of Attorney.  Some practitioners argue that the person need only know that the document authorizes another to handle her financial affairs. This threshold is quite low. Others argue that the capacity required should be the same as that required to enter into a simple contract.  The standards for entering into a contract require the ability to comprehend the nature, scope and quality of the transaction, together with an understanding of its significance and consequences of the documents.  This is a much higher threshold.

While these standards may seem clear, applying them to a particular individual may be difficult.  An attorney must meet privately with the person to assess her capacity before drafting or executing legal documents.  The determination of a person’s capacity is typically based on information gleaned by the attorney in interactions with the person, from family members and friends who spend a lot of time with the person, and, if necessary, from medical personnel.   Often an attorney will ask the person a series of questions, such as her name, address, number of children, current president, current year, etc.  The attorney will also ask the person to describe the legal help she wants and her reasons for her actions.  These questions may be asked over several visits to determine if the person is consistent in her answers.  Sometimes, it may be appropriate to have a doctor provide a professional evaluation of the person before asking her to sign the documents or to videotape the interview to show that the person did understand the consequences of her actions.  If the attorney reasonably believes that the person does not possess the required capacity, he or she cannot prepare the legal documents.  If that is the case, a guardianship or conservatorship may need to be brought in order for the child to have legal authority to handle the parent’s affairs.

A diagnosis of dementia can come as a great shock.  For most individuals and their families, the immediate concern is treatment.  While legal issues may not be at the top of the priority list, such issues are often a significant and time sensitive matter.  Legal and financial affairs should be attended to as soon as possible to ensure that your parent’s affairs will be organized in the future in the way he or she wishes. Consult an attorney for more questions about this subject and other concerns you may have.

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