Did You Know that “Incompetent” People Cannot Sign Legal Documents?

Under the law, a person must have “capacity” to validly sign legal documents. Before I permit my clients to sign their wills, I must believe that they know what belongs to them and to whom they wish to leave it. For example if a client knows she has four kids and wants her money and personal belongings split evenly among them, she likely has capacity to sign her will. But if she can’t remember each of the kids’ names or doesn’t remember where she regularly banks, then it is probably too late to sign new a new will or “update” an old one.

The standard for signing a power of attorney form, which surrenders control over a person’s property, requires greater cognitive ability than that necessary for signing a will. Not only must the clients know what they have and who will receive it, but they must also understand the purpose and content of the form.

I often receive calls from people asking if I can draft documents for relatives who suffer from Alzheimer’s disease or other forms of dementia. A diagnosis of neurological disease does not, by itself, render a person legally incompetent. However, once the illness has progressed to the point that the person can no longer meet the competence standard, it’s too late to get their affairs in order. Even if an ill person meets the competence standard, records of a dementia diagnosis may later be used to challenge the judgment of the attorney who made the capacity determination and thereby invalidate the documents.

In sum, an attorney can only permit legally competent clients to sign wills and other documents. For clients who lack the capacity, signatures are impermissible, and any resulting documents may later be voided by a court.