There is a firmly embedded principle in our legal system that in order for you 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 you sign the documents. There have been numerous Michigan Supreme Court and Appeals Court cases affirming this standard. This is often referred to the capacity to contract.
Although financial powers of attorney, health care powers of attorney, Do-Not-Resuscitate orders and trusts are generally considered contracts, contractual capacity is not sufficient to execute these documents. The Michigan Estates and Protected Individuals Code (EPIC) has raised the standard on these documents, so that you must be of sound mind and have the same mental capacity to execute these documents as needed to execute a will. This is called testamentary capacity.
There is a four prong test to determine your testamentary capacity set forth in EPIC:
- You have the ability to understand that you are providing for the disposition of your property after death, or “Who do you want to benefit?”
- You have the ability to know the nature and extent of your property, or “What do you own?”
- You know the natural objects of your bounty, or “Who is your family or other loved ones?”
- You have the ability to understand in a reasonable manner the general nature and effect of your act in signing the document, or “What does the document do?”
Whenever we have clients coming in to our offices to sign these documents, we have to make the determination that the document signer has the sufficient testamentary capacity to execute these documents. Just because you can physically sign a document upon command does not mean that you have the legal capacity to do so. If you do not have the testamentary capacity to sign those documents, but sign them anyway, the documents are not legally valid.
More than once, we’ve had to refuse to witness estate planning documents because we believed that the signer lacked the testamentary capacity to sign the documents. It did not make the client’s family particularly happy, but we are not going to risk our reputation or law licenses because a client did not sufficiently plan when they were able.
If you are already in the nursing home and have symptoms of dementia from Alzheimer’s, is it possible for you to still sign your will and powers of attorney? Short answer: Depends. If you have been around someone with dementia, you know that they can have good days and can have bad days. Some days, they 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 and they meet the four prong test of testamentary capacity, those documents are just as valid as if they never had dementia.
If you had dementia and were going to update your estate planning documents, schedule the signing appointment at the time of day that you would most likely be the most alert. In our offices, sometimes we will schedule multiple possible signing appointments for clients with dementia. If the client is having a bad day, loved ones will call us and we will cancel that day’s appointment. If the client is having a good day, the client will come in and if we believe they have testamentary capacity that day, we will have them sign the documents.
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 estate planning documents.
For example, if you have a conservator or 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. Even if you are in a nursing home, you can sign valid estate planning documents if at the time of signing those documents, you have sufficient testamentary capacity.
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.
A successful challenge to your properly executed will or other estate planning documents with independent witnesses is very difficult. Not only does the challenger have the burden of proving that you were of unsound mind at the date and time of the signing of the documents, he or she 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 should be generally ignored unless it is directly related to the time of signing.
Regardless, it is still better to do planning and have your documents in place long before you need them. If you have done proper planning, you can keep control of your property and other assets while you are alive and well, provide for you and your loved ones in the event you become mentally disabled, and when you are gone, you can give what you have, to whom you want, when you want, the way you want.
By Matthew M. Wallace, CPA, JD
Published edited May 21, 2017 in The Times Herald newspaper Port Huron, Michigan as: Are you able to sign your estate planning documents?