When Can Mom or Dad Sign Their Will

Mom or Dad is already in the nursing home and has symptoms of dementia from Alzheimer’s. Is it possible for Mom or Dad to still sign their will and powers of attorney? Short answer: Depends.

There is a firmly imbedded principle in our legal system that in order to sign legal documents you must possess the mental competence to reasonably understand the nature and effect of your action. This competency is tested at the time of your signing of the documents.

Anyone who has been around someone with dementia knows that they can have good days and can have bad days. Some days, Mom or Dad may not even know who you are. On other days, they are just as with it as you or I. If the legal documents are signed on one of their good days, those documents are just as valid as if you or I had signed our own legal documents.

To have the mental capacity to sign a will, you must know who, what and where. Who would ordinarily benefit from your estate, such as family and friends? What do you own and what is it worth? And where do you want to distribute your property?

That’s fine and dandy for the will, but what about deeds, financial powers of attorney or trusts? For these documents, you need the mental capacity to contract. This is similar to the test for mental capacity for wills. To have the mental capacity to contract, you need to possess sufficient mind to understand, in a reasonable manner, the nature or effect of the act that you are doing.

The most rigorous requirements are for the signing of your health care power of attorney. This is because your Patient Advocate may be making life and death decisions. You must have two independent unrelated witnesses. Those witnesses shall not sign your durable power of attorney for health care unless you not only appear to be of sound mind, but also appear under no duress, fraud or undue influence.

Generally, weakness of mind and forgetfulness are insufficient to invalidate your estate planning documents if it appears that your mind was capable of attention and exertion when aroused. You could be suffering from physical ills and some degree of mental disease and still execute valid documents.

For example, if you have a guardian, you may still be able to sign valid estate planning documents. Similarly, many people with Alzheimer’s, especially in early stages, regularly sign valid estate planning documents.

As additional protection, your estate planning documents should have two or three independent witnesses. These witnesses should have no personal stake in your property and would only witness the documents if you appear to be of sound mind.

The good news is that a challenge to your properly executed will or other estate planning documents with independent witnesses is very difficult. Not only does the challenge have the burden of proving that you were of unsound mind at the date and time of the signing of your documents, it also must prove that the unsoundness at that particular time was of such character that you had no reasonable perception of the terms of the documents. Any evidence of your mental capacity before or after the signing is generally ignored unless it is directly related to the time of signing.

So even if Mom and Dad are in a nursing home, they can sign valid estate planning documents if at the time they sign those documents, they have sufficient mental capacity.

By: Matthew M. Wallace, CPA JD

Published edited April 5, 2009 in The Times Herald newspaper, Port Huron, Michigan as: Mental state can affect one’s will

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