FEBRUARY 25, 2013 VOLUME 20 NUMBER 8
Let’s get the answer to the question out of the way first, and then we can deal with more nuance. Yes, a person with dementia may be able to sign legal documents.
The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes, “incapacity”) is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.
Capacity or competence are tested a little differently depending on what documents the person is signing. The most highly-developed law of capacity, unsurprisingly, centers on the level of understanding required to sign a will. That standard is almost universally referred to as “testamentary capacity.” Although precedent for defining testamentary capacity goes back at least to mid-sixteenth century England, the standard is occasionally restated or reformulated.
Arizona’s Supreme Court most recently reviewed testamentary capacity in 1973. In that case the Court described the woman who signed a will as:
“94 years old at the time she executed her will. She had very poor eyesight and was deaf in one ear and partially deaf in the other. As a result of previously broken hips, she used a “walker” to move around. Evidence shows that she was forgetful and did not remember the names of her great grandchildren. She spilled food when she ate and went to the bathroom frequently. She had a short attention span and it was difficult for some people to talk with her.”
The Court goes on to describe the three-part test for capacity to sign a will. A signer must have:
- the ability to know the nature and extent of one’s property,
- the ability to know the natural objects of one’s bounty, and
- the ability to understand the nature of the testamentary act.
Estate of Vermeersch, 109 Ariz. 125 (1973).
The standard of testamentary capacity, then, is quite low. Even people suffering from delusions or hallucinations have been found to have testamentary capacity. In an earlier Arizona Supreme Court case, the signer of a will had deteriorated markedly near the end of her life (and before her will was signed):
“during the last three years of her life she became coarse and profane. The testimony is to the effect that she shrieked and screamed at all hours of the day and night. That she mistreated her brother and cursed him, although he diligently performed his tasks around the house. That she became utterly careless in her dress, took to wearing very little clothing, rarely combed her hair or bathed, and on occasion was indecently exposed in the presence of neighborhood children. She stopped taking care of her house, stopped cooking, and ate from cans, although she fed her animals and chickens better food. She affirmed a belief in the ‘power of thought’ and practiced ‘black magic.’ She thought she could cast spells on people and tried to put a hex on the family next door so they would move out. She sat in the outhouse behind her home and watched the neighbors’ children from a peephole or stalked up and down along the fence between their property, glaring and gesturing to them and sticking out her tongue, in her efforts to get them to leave. She declared that the members of a church on the corner were praying for her to die so that they could acquire her property, when in fact, according to the minister, they wanted to move to another part of town. She was suspicious of people and built a fence around her house to ‘keep my enemies out’ and hung a padlock on the gate. In the last months before her death her conversation became incoherent and her mind wandered, she was forgetful and childish, and she seemed even more quarrelsome and ill-tempered than before.”
Despite that description, the will was found to be valid because the evidence did not specifically point to any relationship between her deteriorating mental condition and the terms of her will. Estate of Stitt, 93 Ariz. 302 (1963).
In yet another Arizona case, the will of a developmentally disabled man was upheld, even though he was said to function at about the mental level of a child of 10 or 12. Estate of Teel, 14 Ariz.App 371 (1971). In that case, the court quoted a standard legal text of the time for the proposition that “testamentary capacity is not the same as the ability to transact ordinary business.” That principle is still true today.
So can a person with dementia sign a will? Yes, so long as he or she can identify family, assets, and the purpose of making a will. A diagnosis of dementia may be evidence of some limitation in those abilities, but many demented individuals — particularly those early in the dementia process — can satisfy those minimal requirements.
What about other legal documents, like contracts, powers of attorney, deeds and the like? The answers will vary depending on the type of document, the circumstances of the signing and the nature and extent of the dementing condition. We’ll talk about those issues in a future installment.