Introduction
Because dementia impairs one’s cognitive abilities, family members seeking to help a loved one who suffers from declined cognitive ability should exercise caution when helping their loved one to execute power of attorney documents. This principle also applies to those suffering from Alzheimer’s, Parkinson’s, and other disorders that impact decision making abilities.
Testamentary Capacity
In order to sign a power of attorney, the principal, the person who is issuing the power of attorney, must have testamentary capacity. For power of attorney documents executed in Arizona, testamentary capacity means that the principal must understand the “nature and effect” of signing the power of attorney (Goelleher v. Horton, 715 P. 2d 1225).
In Arizona, there are three elements for determining testamentary capacity for a power of attorney. First, they must have an understanding of the purpose of the document they are signing and the impact the signing of the document will have. Second, they must have a reasonable understanding of who the document will effect. Third, they must have an understanding of what property they own.
Covering Your Bases
Testamentary capacity can be difficult to gauge. Sometimes getting medical evidence can bolster your confidence or give you some peace of mind about moving forward with powers of attorney. Oftentimes, family and friends hoping to help their loved one properly execute a Power of Attorney can request a Verification of Testamentary Capacity from a medical professional. In Arizona, Courts often put significant weight on these types of documents.
Another way to cover your bases is to hire an attorney to represent, advise, and assist your loved one in preparing and signing power of attorney documents. This can help protect you from claims of undue influence should they arise.
Should I Encourage My Loved One to Sign a Power of Attorney Document?
Knowing whether or not it is ok to encourage someone with diminished capacity to sign a power of attorney can be difficult. If done incorrectly, this kind of encouragement can be misinterpreted, putting family and friends at risk of being sued or charged with criminal offenses. For these reasons, we strongly recommend consulting with one of our professionals before taking action. You can contact our office at (480) 409-9303 to schedule a consultation today.
Alternatives to a Power of Attorney
When a loved one needs the authority granted in a power of attorney, but is mentally unfit to sign one, family and friends should consider petitioning the Court for a Guardianship (for healthcare needs) or a Conservatorship (for financial needs). In Arizona, there are several different types of guardianship and different types of conservatorship.
Meeting with an attorney can help you know what arrangement will best help your loved one. Call our Guardianship and Conservatorship team at (480) 409-9303 to discuss your case today.
The above information should not be construed as legal advice. No attorney/client relationship is formed upon receipt or delivery of the above information.