When is a man 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 naturally have to take over for an aging parent. Maybe the parent is falling behind on bills or has issue dealing with the curative 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 often seen as an admission that the parent may authentically need such help. Integrate that with the child's reluctance to bring up the subject for fear that it may anger the parent, and you have a method for procrastination. Hence the all-too-common situation where the attorney has to rule 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 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 asset (i.e., knows practically his net worth and what kind of assets he owns)
• understands the nature and result of his act (i.e., realizes that it is authentically a will he is signing, and what that means)
• is able to make a routine of his asset according to a plan formed in his mind

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

A slightly separate test is complex for signing a power of attorney. Here, the individual must be capable of insight and appreciating the extent and result 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 significant 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 up-to-date 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 quality 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 potential for the individual to make, then the individual can direct person 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.