• The Gentreo Team

When is it too late to name a Health Care Proxy?

Mental diseases like dementia are very challenging for the individual suffering as well as the family members. Mental diseases can also create problems when estate planning or other legal documents need to be completed. If your parent or loved one has been diagnosed with early dementia and is presently still capable of caring for him or herself, can he or she sign legal documents such as a healthcare proxy?

With all legal documents including contracts, Last Will and Testament, trusts, Powers of Attorney, and healthcare proxies, the critical component to a legal signature is that the person is capable of understanding what he or she is signing and the consequences the signature has. Even if someone has been diagnosed with early dementia, he or she may still be capable of executing binding legal documents. However, when someone with a cognitive disability executes a legal document, it does provide potential grounds for someone to contest the enforceability and legality of the document.

Much of the litigation in this country involving estates arises out of people cut out of wills challenging the validity of the document. One of the best arguments that can be made is that the individual did not have the legal capacity to enter into or sign the agreement. It is also possible for someone to contest a healthcare proxy based on the same grounds. So, how might you create a legally enforceable healthcare proxy when you have been diagnosed with early dementia?



When somebody challenges a legal document, including a healthcare proxy, that person typically does so by alleging that one did not have the mental capacity of signing the document. That argument can be avoided or significantly attacked if the person signing the document does so in front of one or more witnesses and a notary public. While nothing can prevent someone from contesting a Will, having people witness the individual signing the document while in the presence of a notary public is the best way to overcome and challenges to the document. Therefore, if you need a loved one to sign a document like a healthcare proxy you should not do it without witnesses. Having the individual sign the healthcare proxy without a witness opens the door for challenges. However, if witnesses and a notary public can attest to the fact that when your parent signed the document, he or she demonstrated a full understanding of what he or she was signing and possessed sufficient mental capacity to sign the document, most challenges will be defeated.


Summary

It is not uncommon for someone to learn that he or she has been diagnosed with dementia yet is fully able to take care of themselves during the initial stages of the disease. If legal documents, such as a healthcare proxy, need to be executed, the individual should do so immediately upon receiving the diagnosis. Documents should be signed in front of witnesses and a notary public who can attest to the person’s mental capacity in regards to what the individual is signing.

For more information, visit us at Gentreo.com. We provide a simple and affordable way to create a heath and estate family plan.

Gentreo is not a law firm or a substitute for a law firm or attorney or an attorney’s advice or recommendations.

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