Whether a parent can still sign

A diagnosis is not a finding

Capacity is a legal question that usually rests on a clinical picture, and the two are not the same thing. A doctor can say what is happening to somebody's brain. Whether that person may sign a particular document is decided against a legal standard, for that document, at that time.

• It is decision-specific. A person may lack the capacity to manage a portfolio and retain the capacity to say where they want to live, or to appoint somebody to help them.
• It is time-specific. It can be present in the morning and absent by evening, present between infections and absent during one, present on medication and absent while a dose is being changed.
• It is not a percentage. There is no score at which documents become impossible. A cognitive test result is evidence, not a verdict.
• It is not the same standard for every document. What is required to make a will, to sign a power of attorney, to make a gift and to enter a contract are separate questions, and they are not all set at the same level.

The error that costs families most is deciding it themselves. "He has dementia, so it is too late" ends the inquiry, and it is frequently wrong at the point it is said — after which the family spends thousands of dollars and several months obtaining in court what could have been signed at a kitchen table.

Who actually decides

Nobody issues a certificate of capacity. In practice the question is answered by whoever is being asked to rely on the signature, and there are three of them.

A court is the fourth answer, and it is the one families end up at when the first three were never asked. A judge deciding capacity is deciding it retrospectively, in public, after somebody has objected.

What to do when it is uncertain

Uncertainty is the common case and it is workable. The moves that help are practical rather than legal, and most of them are about giving the signing the best possible conditions and leaving a record of what those conditions were.

1. Make the appointment now. Cognitive decline does not reverse, so every week of deliberation costs a week of the window. An attorney who says it is too late has given you an answer; a family that waits has given itself nothing.
2. Choose the time of day. If your parent is clearest in the morning, sign in the morning. This is not gaming anything — capacity fluctuates, and the law assesses it at the moment of signing.
3. Take the medical picture with you. A recent medication review matters, because a drug interaction or an untreated infection can look exactly like decline and can be reversible.
4. Ask about a contemporaneous record. Where capacity might later be questioned, some attorneys will record their own assessment, arrange a physician's letter close to the date, or arrange witnesses who can speak to it. This is what makes a document hold up rather than merely exist.
5. Do not be in the room if you can avoid it. A child who drove the parent, chose the attorney, and sat beside them while they signed has made the document easier to attack on grounds of influence, whatever actually happened.

If nobody has yet asked a doctor about the memory itself, the assessment is already a required element of an appointment your parent is entitled to every year, and the rule defines it as including due consideration of concerns raised by family members. What you have noticed is not an anecdote to get past — the regulation names it as part of what the assessment must consider.

What is left when it has genuinely gone

If a parent can no longer understand what they would be signing, no document can be created — not by them, not by you, and not by agreement among the family. What remains are appointments made by somebody else, and there are three.

Do not have your parent sign anything after this point on the theory that it is what they would have wanted. A document signed by somebody who could not understand it is worse than no document: it can be set aside later, it exposes the person who arranged it, and it delays the appointment that would actually have worked.

What still works either way

A family without authority is not a family without options, and several of the most useful things in this territory need no capacity and no appointment at all.

• Documents that already exist keep working. A power of attorney signed in 2014 by somebody who has since declined is not weakened by the decline — a durable one is written precisely for this.
• Where a health care agent has been appointed, that person must be treated as the patient for privacy purposes, so the access to medical information travels with the appointment.
• An Area Agency on Aging can assess, arrange services and advise without anybody holding authority over anything.
• A bank or brokerage can act on a concern about exploitation without the family holding any document — a firm may place a temporary hold on a suspicious disbursement, and a trained institution has protection for reporting.
• Nothing prevents a family from continuing to do what they have been doing: opening the post, noticing what is due, and paying bills with the parent's money at the parent's direction, for as long as that direction is meaningful.