The early stages of Alzheimer’s can be difficult to negotiate for family members. What happens when a parent with a diagnosis of Alzheimer’s decides she wants to sell the family home, without having any discussion with other family members or without a plan for what comes next?
The legal issues facing a family in this type of situation are not straightforward. Even with a diagnosis of Alzheimer’s, a person can still make certain decisions and transactions, including selling the family home. If a parent gets angry at a child’s questioning a decision, the parent can go forward without a child's consent or counsel. How can you prepare for this?
The Eagle reports in the recent article “MENTAL CLARITY: Shining a light on the capacity to sign Texas documents” that the concept of “mental capacity” is complicated. There is considerable confusion about incapacity. The article explains that different legal documents have a different degree of required capacity. The bar for signing a Power of Attorney, a Warranty Deed, a Contract, a Divorce Decree, or a Settlement Agreement is a little lower than for signing a Will. The individual signing legal documents must be capable of understanding and appreciating what he or she is signing, as well as the effect of the document.
As long as she understands that she’s selling her house, and that, once the document is signed, the house will belong to someone else, a parent can sell her house. A terminal diagnosis or a neurodegenerative disease doesn’t automatically mean that an individual can’t sign legal documents. A case-by-case assessment is required, to see if the document will be valid.
The fact that a person is unable to write his or her name, doesn’t mean they lack capacity. If a senior can’t sign her name (possibly due to tremors or neurodegeneration) she can sign with an “X”. She can direct another individual to sign her name on her own behalf. If this is completed before witnesses and the notary, this process is legally binding.
A hard part of Alzheimer’s is that a person’s mental clarity can come and go. Capacity can be fluid in the progress of a neurodegenerative or other terminal disease. Because of this, the best time to sign critical documents is sooner rather than later. No one can say the “window of capacity” will remain open for a certain amount of time.
Some signs should prompt you to move more quickly. These include things like the following:
- Short-term memory loss;
- Personality changes (e.g., unusual anger);
- Confusing or forgetting common-usage words and names; and
- Disorientation and changes in depth perception.
The best route is for family members to talk with their parent’s physician and meet with an estate planning attorney to discuss the legal options. As the Alzheimer’s disease or other form of dementia progresses, the parent’s capacity will diminish. Documents need to be drafted and executed in a timely manner, prior to incapacity in order for the documents legally effective when used in the future.
As most can't specifically say when they will become incapacitate, taking the time now to plan ahead for that future day will avoid the headache and expenses of having to be declared incapacitated by a a court if the proper documents have not previously been completed. Contact the Soto Law Firm today for a free consultation to discuss your goals or a family member's goals and how we can help each of you put together an estate plan that will help avoid future incapacity issues.
Reference: The Eagle (February 7, 2019) “MENTAL CLARITY: Shining a light on the capacity to sign Texas documents”