Can Alzheimer’s Patients Sign Legal Documents?

That was the quandary a family we were talking with was facing. Can Alzheimer’s patients sign legal documents? Was it too late to appoint powers of attorney? Create health care directives, or update mom’s will?

Sunlight recently spoke with Mary Vandenack and Marian Weaver with Vandenack Weaver LLC, an Omaha-based law firm that specializes in elder law. Mary Vandenack brings more than three decades of experience and profound insights into the realm of elder law. Marian Weaver, the firm’s Life Care Planning Care Coordinator, offers a distinct perspective on holistic planning.

According to Vandenack, “An Alzheimer’s (or dementia) diagnosis alone does not mean someone lacks the capacity to execute legal documents.” The progression of Alzheimer’s disease occurs in stages, and particularly in its earlier phases, individuals can possess the competence to comprehend and sign crucial documents. It is that term, capacity, which is the pivotal factor. A diagnosis of incapacity is usually determined by a physician.

Vandenack underscored a critical factor: the urgency of executing the desired legal documents while the individual retains their capacity. Generally, you cannot create powers of attorney or a will if an individual is deemed incapacitated.

Testamentary capacity

Testamentary capacity is the standard measure for creating documents such as wills and powers of attorney. Vandenack explained that if a person demonstrates they comprehend their finances and their assets; and if they understand who their relatives and any other beneficiaries are; they are likely to meet the criteria of testamentary capacity. If capacity is in question, a physician’s opinion is sought. Family members are not able to determine capacity. For more information, Vandenack Weaver has an excellent podcast on incapacity planning.

Powers of Attorney (POA)

There are two types of powers of attorney. You may select the same person to be your attorney-in-fact for both types, or choose to have different POAs.

• A durable general power of attorney designates someone you trust as your agent, (“attorney-in-fact”.) This person will act on your behalf for a wide range of legal and financial matters. “Durable” is important, as this power of attorney remains in effect even in the face of incapacitation. Otherwise, the POA expires upon incapacity.
• Your healthcare power of attorney pertains solely to making healthcare decisions on your behalf.

Healthcare Directives

Just as a will guides how finances and assets are to be dealt with upon death, healthcare directives guide how you would like to handle certain health conditions. Currently, the directives are based on one of two health conditions: terminally ill (life expectancy 6 months or less); or persistent vegetative state – a condition that can be treated but never cured. This directive communicates your wishes with regard to nutrition, hydration, and pain relief. Your healthcare POA must follow these directives, should you fall into either of those health conditions.

DNRs

Do-Not-Resuscitate orders are another healthcare directive, stipulating that you do not want life-prolonging treatment in the case of cardiac arrest or respiratory arrest. End of Life Sustaining Orders are also healthcare directives, dealing with the administration of medications, IV fluids, supplemental oxygen, etc.

Mental healthcare directives

Vandenack suggested that if you never want to be committed to a mental health facility, or never want to be given certain drugs (for example, mood stabilizing medicines such as lithium) your wishes would be stipulated in mental healthcare directives.

Vandenack said each of the 50 states has its own statutes of capacity. Furthermore, the interpretation of these statutes can vary across individual courts. That’s one reason to be cautious when using online template “forms” for your legal documents. Mary strongly advised if relying on online forms, look up the statutory forms specific to your state of residence. Other online forms might not be valid in your state.

Marion Weaver, the law firm’s Care Coordinator, stated, “A focus of Life Care Planning is prevention from being in crisis situations where capacity needs to be determined for signing of legal documents. Vandenack Weaver’s Life Care Planning offers a holistic approach to encompass not only the legal and financial provisions needed for protection of a client’s assets and wishes, but provides for Care Coordination, Family Support and Advocacy Services so our clients can experience the highest level of Quality of Life.” Vandenack Weaver’s website states “The goal of Life Care Planning is to promote and maintain the health, safety, well-being, and quality of life of elders.”

Backed by decades of experience, they know what to ask and how to go beyond basic state statutory forms. Vandenack Weaver creates client-tailored documents which protect their client’s interests and uphold their wishes, while assisting to navigate the long- term care journey. For more information on their services, visit www.vwtlawyers.com.

The journey through Alzheimer’s may be challenging, but equipped with knowledge and guidance, families can navigate the legal landscape while ensuring the best possible outcomes for their loved ones. Save yourself from having to ask “Can Alzheimer’s patients sign legal documents?” Pre-plan now, while capacity is not an issue.