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When Is a Person Too Incapacitated to Sign a Will,
by K. Gabriel Heiser, Expert Attorney, author, Medicaid asset protection planning
Many people are surprised to find out that a person with Alzheimer's or under a guardianship may still be legally competent to sign a will.
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. Thus, the parent may be competent to sign a power of attorney, but not competent to sign a will.
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.
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" (known as a "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 should I do once I have completed the Health Care Proxy?
Give your Health Care Proxy and Alternate a copy of this form.
You may also want to give a copy to your lawyer or close family members or friends.
Give a copy of this form to your primary care provider and to any specialists you see often.
Ask them to make sure that your Proxy information, or a copy of this form, is in your medical record.
Keep a copy for yourself and try to bring it with you if you have to go to the hospital.
Talk to your Health Care Proxy about what matters most to you. Think about what you would or would not want if you were very sick, or if you were at the end of your life.
Talk about the care you would want to receive if you were very sick. If members of your health care team know about your wishes, they may be very helpful to your Proxy if difficult decisions ever need to be made about your care.