Imagine that your mom has Alzheimer’s. She calls you one day, out of the blue, saying that she wants to sell the family home. When you ask her where she would live if the family home is gone, she doesn’t seem to have a clear plan. Ten minutes into the call, Mom gets upset with your questions. She declares that she can sell the house without your help and hangs up the phone.
Can she just sell the house, despite her diagnosis? Doesn’t her diagnosis mean that she can’t sign legal papers, no matter what she says?
If reading this caused you to break out into cold sweat, you are not alone. The concept of “mental capacity” is complex, and there’s a lot of confusion about incapacity. Here’s what you need to know.
Understand the requirement
Different legal documents have a different degree of required capacity. Without diving too deeply into legalese, you need to understand that the bar for signing a Power of Attorney, a Warranty Deed, a Contract, a Divorce Decree, or a Settlement Agreement is a little lower than for signing a Will.
Leaving the Will aside for the moment (because it would warrant a separate article), let’s focus on other legal documents first. The person signing them must be capable of two things. One, understanding and appreciating what he or she is signing. Two, the effect of the document.
So, back to our example. Can Mom sign the Deed to her house over to the buyer? If, in the moment of signing, she understands that she is selling her house, and that, once the document is signed, the house will belong to someone else, then the answer is “Yes, she can”. A terminal diagnosis or a neurodegenerative disease doesn’t automatically render a person unable to sign legal documents. A case-by-case assessment is necessary to determine whether the document will be valid.
What if the person can’t sign his or her name?
This is another common misconception. Just because someone can’t write his or her name doesn’t mean that they lack capacity. If Mom can’t sign her name (possibly due to tremors or neurodegeneration) she can sign with an “X”. Alternatively, she could place her hand on top of someone else’s and allow the other person to sign Mom’s name. Done in front of the witnesses and the notary, that would be perfectly legal.
What if the person’s mental clarity comes and goes?
This is a tough aspect of disease. Sometimes, Mom might be perfectly sharp and “with it”. Other times, she may be off in her own world. She might be making sound decisions today but trying to walk in the middle of rush hour traffic tomorrow. Alternatively, she might get agitated for no obvious reason, become aggressive, or slide into non-responsiveness.
Capacity can be fluid. Progress of a neurodegenerative or other terminal disease is rarely linear. This is why the best time to sign critical documents is sooner rather than later. You might think that you have plenty of time, but no one (not even your Mom’s doctor) can guarantee that the “window of capacity” will remain open for a certain number of days, weeks or months. If you miscalculate, you risk spending money, time, and effort on creating legal documents that may be challenged and found to be invalid later.
What are the signs that you should act now?
We all live full and busy lives. The temptation is great to delay signing a Power of Attorney or a Deed, especially if interacting with your loved one isn’t smooth or pleasant. And yet, the process will be least painful if you get through it before your parent’s legal capacity declines.
How do you know when you have to act right away? You don’t. However, the following signs should prompt you to move a little quicker.
- Short-term memory loss
- Personality changes (i.e. the person becomes unusually angry, inappropriate, or withdrawn)
- Mixing up or forgetting common-usage words and names
- Declining ability to do math where it had once been easy
- Disorientation and changes in depth perception (i.e. driving into an obstacle, tripping on a step)
Remember that diagnosing mental decline is tricky. Any one of the signs above could be caused by dementia or a host of other problems—from medication side effects to depression or vitamin deficiency. Work with your loved one’s doctor and specialists to get to the issue’s root cause. Reach out to an elder law attorney who can walk you through your options, document your loved one’s legal capacity, and get the right documents executed sooner rather than later. Do your part so that other professionals can help you take care of your loved one.