A stroke or other sudden medical events may leave a person with severely diminished capacity, including the inability to work, but they may have enough capacity to make their medical, financial, and legal decisions.  The reality may be that although they have the minimal capacity to make those decisions that they need assistance.  To be able to effectively provide that assistance, someone needs legal authority to do so.  Can someone who is impaired sign legal documents?

The question of someone’s legal ability to sign legal documents determines whether they are simply impaired or they are incapacitated.  This is not a black and white test, but shades of gray.  It may require the opinion of a medical professional whether a patient has sufficient mental awareness to sign legal documents, and the attorney consulted will want to review the medical assessment and make their own assessment that the client understands any documents that can be signed.  In these circumstances, what can be signed?

Beginning from probably what are the simplest documents progressing to what is more complex, the following should be considered:

  1. Agent for disposition of remains: This is appointing someone to make funeral decisions, and is a simple choice of agent.
  2. A HIPAA release: This is simply giving access to someone to have medical records, and again is very basic and requires very little mental ability.
  3. A full medical power of attorney: A HIPAA release is often included with a full medical power of attorney, and an advanced directive, but each can be signed separately.  To grant a medical power of attorney takes an understanding that one might need assistance in making medical decisions and who is the best person to make those decisions for them.  This is slightly more complex than simply giving someone access to medical records, but still does not take a great deal of mental ability and some impaired persons can sign these documents.
  4. Advanced directive: A Texas advanced directive provides the opportunity for a person to decide, if they are in an irreversible or terminal condition, as defined by Texas Health and Safety Code, to withhold care and allow them to die peacefully.  Again, this is often signed in combination with a medical power of attorney and a HIPAA release, but may take a bit more full understanding than the other documents, and is one level of complexity greater than simply signing a medical power of attorney.
  5. Last Will and Testament: It might be highly desirous to do a will for someone who has had a severe medical crisis, but in my opinion, it is more complex than simply signing powers of attorney.  One must know their assets, their family, their desires for their property, and how they are to be divided to be able to sign a will.  It is more than simply “I need help and I know who I want to help” which is what a power of attorney does, but making overall financial decisions.  Whether an impaired person can do this again is a judgment of both medical and legal professionals and depends greatly on the complexity of one’s estate and the nature of the family.  If someone has any significant impairment, it might be best to choose the simplest will possible and avoid more complex plans.
  6. Living trust:   Few non-lawyers intuitively understand any trust, and a living trust is a complex arrangement that requires a significant amount of mental ability.  Again, this is a medical and legal analysis as to whether someone has sufficient mental ability to sign a living trust.  For most people, the concept of a will is simpler to understand and the language is more direct than in a trust, so a living trust may be more difficult for some to fully understand and requires a higher level of mental ability, so it may be beyond the reach of someone who has had a severe medical crisis until there has been a more significant recovery.

If none of these documents can be signed because of the patient’s impairment guardianship and long-term care must be explored, which will be addressed next week.

This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.