San Antonio Express-News
February 4, 2003

Capacity to Sign Legal Documents

copyright 2003, Paul Premack

Dear Mr. Premack: My grandmother had been asking my mother to take over her financial/property affairs for many years, but of course my mother never got around to making my grandmother's wishes legally binding. I don't think my grandmother has a Will either. Last Saturday my grandmother suffered a stroke. She has good days and bad days and her memory for the most part is still intact. Now my mother is trying to get power of attorney to make things legal. I was wondering if this will be difficult since my grandmother may be deemed "incompetent." -- KJ via Email

Texas law no longer uses the word "incompetent." Rather, the word "incapacitated" is used to indicate that a person has lost certain abilities, but may also retain certain abilities. A person is presumed to have capacity to make decisions and handle legal affairs until a court rules otherwise.

There can be degrees of incapacity. Even though your grandmother has suffered a stroke, she has good days. Since the legal ability to create any type of binding legal document depends on the state of mind of the person creating the document, she may be capable of signing a power of attorney on one of her good days.

The capacity required to create a legally valid power of attorney is the same required for any contract: does the signer understand the terms of the agreement at the moment it is signed? If the answer is "yes" and your grandmother chooses to sign, then she has created a valid power of attorney. Formally, she must sign before a notary public. The document does not need to be signed by witnesses. It only needs to be filed with the county clerk if it is used in a real estate transaction. All other transactions, like using it at the bank, do not require that it be a public record.

It is important to make a clear distinction between a power of attorney and a Will. Power of attorney is a financial management tool that is valid only so long as its maker is alive. A Will is only effective after a person has died. Also, a different standard of capacity is required when signing these two different documents.

To make a Will, a person must have "testamentary capacity." If, for instance, your grandmother still knows who is in her family, knows in general the extent and nature of her assets, and knows how she wants the assets to pass when she dies, then she has enough capacity to make a Will.

It would be appropriate for your mother to be in touch with your grandmother’s attorney. Perhaps the attorney can make a home visit. If they get together on a good day, your grandmother should be able to clearly state her wishes and satisfy her attorney that she has capacity to proceed.

If not, then the other option is court-supervised Guardianship. This legal process removes certain powers from the "Ward" (your grandmother) and gives them to a Guardian (your mother). Guardianship is effective, but it is also expensive and slow.

Your grandmother’s story points out that "waiting to get around to it" can be very negative. People should visit their attorney to put legal plans like Wills, powers of attorney and medical directives into place. Don’t wait until it may be too late.