Do people living with dementia have the capacity to sign legal documents?
The National Institute on Aging (NIH) states that dementia is a “loss of cognitive functioning—thinking, remembering, and reasoning—to such an extent that it interferes with a person’s daily life and activities.”
Dementia is associated with old people, who are above 85 years old.
People living with dementia have trouble with concentration and understanding.
In addition, these people have problems with short-term memory.
Therefore, some members of society question the ability of people living with dementia to give consent or sign legal documents.
This article offers a brief overview of how people living with dementia can sign legal documents.
Furthermore, the article answers the question “Can someone with dementia sign legal documents”.
Who can sign a legal document?
The general rule is that anyone can sign a document if they are intelligent enough to understand the nature of the document that they are signing and the importance of their signature.
However, in some situations, capacity—as in the legal threshold—to make a decision must be considered.
For example, a person who is under 18 years old cannot sign some documents, such as marriage contracts, because they lack consent. Hence, they are not competent to give assent or approval.
In other words, capacity includes consent; thus, persons with dementia who have consented or have given informed consent have the competence to sign legal documents.
Assessment of competence of people with dementia to sign documents
A person who has been diagnosed with dementia may be able to sign legal documents.
The threshold for signing documents must be proof of the capacity or competence to sign any legal documents.
Competence is the legal capacity to make decisions. For example, children cannot make legal decisions affecting their health care due to a lack of consent, hence being incompetent.
Persons with dementia may lack the competence to sign legal documents where they cannot give informed consent.
However, where they can give informed consent, they can sign legal documents.
What is informed consent?
The informed consent of people living with dementia consists of two sections.
First, the person must understand the contents of the documents provided.
Secondly, the person must also have the power of free choice, which allows them to consent or refuse.
Components of informed consent
Possession of competence. Competence is the legal capacity to make decisions. A person with dementia can sign documents if they can prove competence.
Informed consent must also contain voluntariness. No one should be forced to make a decision.
Informed consent should be free and understand that participants can withdraw at any time without having to justify their decisions or suffer any negative repercussions.
Does a person with dementia have the capacity to sign legal documents?
Capacity is the ability to make rational decisions based on all relevant facts and considerations.
Legally, everyone has capacity unless it is proven that they lack capacity.
In addition, no person should be treated as unable to decide unless all practicable steps to help them are taken, and they still fail. Making unwise decisions does not negate a person’s ability to make decisions.
Where a person cannot decide due to a lack of capacity, the decision made on their behalf must be done in their best interests. The decision made after should not violate the rights and interests of the person.
Persons with dementia can therefore make decisions, in particular in the onset stages of the condition before it becomes more degenerative. This is because dementia ranges in severity from the mildest stage at the beginning to the most severe stage as it progresses.
Arizona’s Supreme Court, in the Estate of Vermeersch, 109 Ariz. 125 (1973), developed a three-part test for the capacity to sign a will. Accordingly, a person who signs a will must have the following testamentary capacity:
- The ability to know the nature and extent of one’s property
- An understanding of the nature of the action they are performing
- The ability to know the natural objects of one’s bounty.
Testamentary capacity, in law, refers to the state where one fully understands the implication of signing a legal document.
Therefore, a person can only sign legal documents when they are of sound mind.
Hence, people who cannot comprehend should not sign any type of legal document.
How can people with dementia sign documents?
Dementia is a progressive condition, People with dementia can sign a legal document if they prove the following:
- An understanding of the nature and extent of the property
- Ability to remember relatives and descendants
- Concise articulation on who should own the property
- An understanding of what they are signing
- Understanding that all things relate and come together to form a plan.
In addition, some instances may require verification from a physician about the competence required of an individual.
A doctor can determine that a person with dementia cannot execute legal documents.
In such instances, the court system should be used to acquire Guardianship or conservatorship for a dementia patient who lacks capacity.
The process of guardianship is necessary as it allows the transfer of such person’s affairs in the absence of a current Trust, Power of Attorney, or Health Care Directive.
The standard to acquire guardianship is generally considered by proving that a person living with dementia cannot sign legal documents because they are unable to provide for their care.
In addition, in some situations, guardianship may be given where the family of the person is unable to agree upon the type of care needed or the person with dementia has no family.