Q. My father, Roy, has severe arthritis and is in the early stages of Alzheimer’s. He is widowed and currently lives in a stand-alone cottage house that my husband and I built for him in our backyard. Sometimes he seems completely “with it,” and other times, he loses his bearings, forgets names and faces, gets agitated for no apparent reason, and seems to be in his own world. Since my family is aware of how important it is to plan ahead, my sister and I decided to sit down with my father to broach the subject of planning for incapacity, estate planning, and long-term care.
When we brought up planning, my father seemed reluctant to discuss setting up a Power of Attorney, which would empower one of us to make legal decisions for him. We assume this is because he thinks this act would be an admission that he may actually need help, and he has always been very independent and proud of being in control of his own affairs. Or, maybe he just doesn’t understand what we are asking, and that is why he is avoiding the topic.
We are not sure what to do, as we know he should plan now, while we think he still can. Or, maybe we are wrong and he is already too incapacitated to legally to sign a Will, Trust, or Power of Attorney. We are also concerned that he can’t even physically sign his name, because of his severe arthritis. How do you determine whether someone has the capacity and ability to sign legal documents, and what steps do you suggest we take?
A. All legal documents — including Wills, Trusts, and Powers of Attorney — require that the individual signing the document have the mental capacity and the ability to comprehend the significance of the document that he or she is signing.
In the case of an Alzheimer’s patient, such as your father, it is essential that legal documents be signed before the patient’s condition progresses to the point at which he or she is no longer capable of signing a legal document. And, if he had previously executed a legal document (which you should certainly ask him about), it is very important to consider whether or not the document should be amended or revoked while he retains the capacity to do so.
So, how is Incapacity Determined?
Many people are surprised to find out that a person with Alzheimer’s may still be legally competent to sign documents. For instance, when it comes to a Will, under the laws of most states, a person is legally competent to sign 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
An experienced attorney, such as myself, should meet with your father to try to discern the above. A physician’s recommendation can also assist in providing guidance about your father’s mental capacity.
Power of Attorney
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. In some cases, the parent may be competent to sign a Power of Attorney, but not competent to sign a Will.
Trust
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.
What if the Person Can’t Physically Sign His Name?
You mentioned that your father has severe arthritis and may not be physically able to sign his name. 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” (or any other “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.
What if he Doesn’t Have the Capacity, or is Unwilling to Sign?
If a Power of Attorney can no longer be signed, you may be able to become a Conservator. Conservators can act like an Agent under a Power of Attorney, with the capability to make financial and legal decisions. But becoming a conservator takes time and involves a costly court procedure.
So, the best advice is not to wait until it may be too late and court action is needed, but to have those conversations with family members while they are still competent and able to comprehend exactly what they’re signing and why.
Talking to Your Father
If your father is possibly still competent, but reluctant to talk about or sign a Power of Attorney, here are some tips for the conversation:
• Think of the best time and place to begin the conversation. Your father needs to feel relaxed and with time to talk.
• Listen carefully, and prompt with gentle questions. By doing so, you open up a dialogue, rather than dictating what you want to happen.
• Make sure you listen actively and that your questions are open-ended, so that they don’t invite “yes” or “no” responses. So, say things like “How would you feel about…?” for example to gauge how he is feeling about things.
• Point out the benefits of signing a Power of Attorney – most importantly, the peace of mind of knowing that critical matters like welfare and finances will be in the hands of someone he trusts, when it becomes necessary.
• Point out the tremendous costs savings – of signing a Power of Attorney now versus waiting until he can’t sign and having to pay five to twenty times more for a conservatorship proceeding.
• Bring him to an experienced Elder Law Attorney – just to begin the discussion of what type of planning is needed. Often hearing what is needed from an expert will hold a lot more weight than hearing it from a family member. We’ve had dozens of clients whose children insisted that their parent would never sign a Power of Attorney, yet once the parent met with us and we explain why it’s necessary, the parent did indeed sign.
The Time to Plan is NOW!
As you know, one of the most important decisions you can make it to plan for your future and for your family, especially while your family still have their wits about them. Please contact us as soon as possible to make an appointment for an initial consultation:
Fairfax Power of Attorney: 703-691-1888
Fredericksburg Power of Attorney: 540-479-1435
Rockville Power of Attorney: 301-519-8041
DC Power of Attorney: 202-587-2797
Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.
