Don’t Wait Until Your Loved One Is No Longer Mentally Competent
One of the hard parts of being an attorney is advising adult children who have suddenly realized they need to step in and help their aging parent. Perhaps their mother isn’t making sound decisions anymore regarding her healthcare, or their father is falling behind on his bills. Whatever the reason, transitioning control of such personal affairs can be a challenge.
Unfortunately, many parents are often reluctant to sign a Power of Attorney that allows their child to make legal decisions for them because they view it as a loss of independence. Combine that with the child’s reluctance to discuss this subject with their parent due to fear that they will be angry, and it is the perfect recipe for procrastination. However, failing to preplan can result in costly and stressful situations.
Last Will and Testament
It comes as a surprise to many people that a person with Alzheimer’s may still be able to legally complete a will. In most states, people are considered competent if they meet the following criteria:
- They know the natural objects of their bounty, i.e. their spouse and children.
- They comprehend the character and kind of their property, i.e. they know what assets they own and approximately what they are worth.
- They understand the effect and nature of what they are doing, i.e. they realize they are signing a will and what that means.
- They are able to make disposition of the property they own according to the plan they have in mind.
Power of Attorney
There is a slightly different test for determining competency when it comes to signing a power of attorney. With these documents, a person must understand and appreciate the effect and extent of the document, similar to signing a contract. In some situations, a person may be competent to sign a power of attorney but not a will. If a client isn’t competent to sign a power of attorney document, an adult child may be required to a conservatorship, also known as guardianship.
A trust is often deemed more of a contract then a will, and consequently, the mental capacity to sign a trust is often less than needed to sign a will. However, some states have recognized that living trusts are often a substitute for wills and have created statutes requiring the same competency for a trust as needed for a will.
Notable Differences Between Mental and Physical Capacity
It is important to note that the physical capability to sign one’s name on a legal document is not the same as mental capacity. The law permits a person to sign an “X” as their signature as long as it has been properly witnessed. An individual is also allowed to direct someone to sign on their behalf if they aren’t capable of making a mark themselves.
Contact an Experienced Estate Planning Attorney Today
It is always advisable not to wait until it is too late for adequate legal planning. Make it a point to have important conversations with family members while they are still of sound mind and able to understand why they are signing documents. These conversations can be difficult, but Tampa estate planning attorney David Toback can help. Contact our office today to schedule a consultation and let us help with explaining to your parent or loved one why planning in advance is the best option.