Incapacity Planning

Posted On January 22nd, 2021 by Michael Dunham

Most people don’t think about getting documents such as powers of attorney, advance directives, or wills for themselves, much less recommending to their loved ones to have those same documents when they notice that someone like their a parent or grandparent starts to experience a mental decline.

In order to sign any legal document, the person signing the document must have the mental capacity to do so. There are various definitions of what constitutes “mental capacity”, but when it comes to legal documents, the most important definition is what Georgia law requires.

So when is an individual considered mentally capable or competent to sign these types of documents?

Generally speaking, the person who is signing or executing a power of attorney, advance directive, or will must understand and be able to communicate in one way or another that he or she understands the document being signed. It must also be clear that the signer is executing the documents as a result of his or her own accord, meaning no one is pressuring or bullying the principal to sign these documents. We all mean well when we want to encourage someone to take care of estate planning and incapacity planning, but it’s important to be careful not to cross the threshold from encouraging to forcing.

Why does it matter whether the signer is mentally capable or competent?

It’s important that the signer is mentally capable to sign legal documents such as powers of attorney, advance directives, and wills because if it is found that he or she lacked the mental capacity to sign, it can invalidate or void the documents. Even if the person who was named as an agent (of a power of attorney or advance directive) acts in good faith and in the best interest of the signer, the court can still declare that the document is invalid or void. It will be as if the person never had the documents in the first place.

What are the practical effects when someone is already considered mentally incapable of signing legal documents?

If you know someone who has already been declared incompetent by a physician, witnesses, and a court – it’s likely already too late to do much estate planning. That person is no longer able to execute a power of attorney – which assigns an agent on their behalf to handle their finances, bills, etc. That person is no longer able to execute an advance directive – which assigns an agent to make health care decisions for them when they can no longer communicate those decisions. That person also cannot state in writing what their medical treatment preferences are. Finally, that person is no longer able to execute a will – which means that the State will have a will for that person (meaning all of Georgia’s default laws will apply). Your best (if not only) option at that point will be a probate court proceeding, which is a complicated, time-consuming, and expensive process.

Bottom Line: Do not wait until someone is experiencing a mental health decline to suggest that they execute these documents. A responsible attorney will not draft documents for someone who he or she knows to be mentally incapable or incompetent to sign any legal document.