Legal Competency: It is not too Late to Create a Will, Trust or Power of Attorney:


Mental capacity is a complex concept that is not necessarily black and white, especially when dementia is a factor. A senior with some form of cognitive decline may experience moments of lucidity during which they could be legally competent to sign a document like a will. Furthermore, different levels of mental capacity are required to execute different legal documents and ensure their validity.

If a person becomes incapacitated due to physical or mental illness or injury and no incapacity plan is in place, it will be  to create such a plan. A person cannot make a Power of attorney once he is already sick or more injured to make informed choices about who should act as his agent

  • The testator must know the natural objects of their bounty (i.e., be aware of their spouse and children, if any)
  • The testator must comprehend the kind and character of their property (i.e., know approximately their net worth and what kind of assets they own).
  • The testator must comprehend the kind and character of their property (i.e., know approximately their net worth and what kind of assets they own).
  • The testator must understand the nature and effect of the act (i.e., realize that it is indeed a will they are signing and what that means).

With POA documents, the individual (known as the principal) must be capable of understanding and appreciating the extent and effect of the document just as if they were signing a contract. This is known as contractual capacity and is a higher level of capacity than testamentary capacity. (Keep in mind that the exact competency requirements for POA documents may vary from state to state.)

Therefore, a senior may be deemed competent to sign a will but incompetent to sign a POA

The mental capacity to sign a legal document should not be confused with the physical ability to sign one’s name. Laws dictating how legal documents can be signed by individuals with physical disabilities (and how this act must be witnessed and/or notarized) vary by state. Some states permit a person to sign an “X” (known as a “mark”) that will suffice in lieu of a signature. If an individual is incapable of making a mark, some states permit directing someone else, such as a notary or a disinterested third party, to sign on their behalf

Many people have strong opinions regarding life support, and a living will allows one to specify which life-sustaining procedures one does or does not want. It is important to be specific when composing a living will, but it is not possible to describe preferences for all medical scenarios. Working with a physician and an elder law attorney will ensure that these instructions are clearly articulated and the document meets specific validity requirements in one’s state of residence. While a power of attorney cannot create a will it is still a good idea to create one so that you are prepared for whatever happens in the future. Remember that the POA can provide for broad or limited powers, and can begin or end at any time you choose. Speak to your designated agent to make sure you’re both in agreement as to what responsibilities you’d like them to handle when the POA takes effect.



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