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My dad has Dementia/Alzheimer's disease. I'm trying to complete a living will and power of attorney document to make decisions o

Acworth, GA |

My dad has Dementia/Alzheimer's disease. I'm trying to complete a living will and power of attorney document to make decisions on his behalf. How can I get them certified when he can't signed them due to a stroke?

Attorney Answers 7

  1. The question is not so much whether he can physically sign it, an X will do if that is his intent. The question is whether he has the capacity to understand the power that he is giving you. Generally, an attorney can meet with him and determine that. The legal standard is fairly low compared to the capacity needed to sign a contract, for instance.

    You need to contact an attorney. If he does not have the capacity, you would need to move to guardianship proceedings. These can be very emotional especially if there are siblings or other family members who may dispute what you are doing.

  2. I'm sorry for your circumstances. Unfortunately, if your father lacks the mental capacity needed to sign a power of attorney, then you will need to petition a probate court in his state of residence to be appointed as his fiduciary. In some states, the fiduciary is called a "conservator", while in others the fiduciary is known as a "guardian." Please discuss this matter with an experienced attorney in your father's state of residence. Good luck to you.

    This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.

  3. The question is about his mental capacity to sign a legal document.
    If he has not been declared incompetent and can understand a legal document-someone can help him sign.
    If he is not capable of understanding-you will need a guardianship proceeding.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

  4. If your father lacks legal capacity to give you a POA and "living will" he cannot do so. Incidentally living wills have been largely superceded in Georgia by health care directives.

    POAs need to be done when people are young and healthy. Sit down with a lawyer (even if he has mental capacity these are NOT do it yourself forms) and determine if you may need other alternatives such as a guardianship/conservatorship, or if the mental capacity is adequate, how you can deal with the need for a signature (in Georgia an X can be a signature).

    If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

  5. As the others have stated, he has to be able to understand what he is signing, so having him mark an X in the presence of an attorney who has net with him would be best. Even if he has dementia, such documents can be signed during what is called a lucid interval, but you would want good witnesses present in case someone tries to use his dementia to challenge any actions you subsequently take. I would recommend a durable power of attorney for healthcare instead of a living will, as such deals not only with life sustaining treatment issues, but general medical decisions as well. Finally, if he is not competent enough to sign a power of attorney, seek to become his guardian through the local probate court.

    The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation

  6. I agree with the earlier answers. However, an attorney, while they may be able to get an idea of the level of competence your father, the safest way for the documents to be protected from future challenges is to have a medical professional perform an appropriate compentency assessment, document it, and if the assessment shows dad is competent, to execute documents as soon after the assessment as possible.

    Everyone's legal situation is different. Comments here do not constitute attorney-client privilege or legal advice to your specific situation. Contact your own attorney.

  7. I agree with all my colleagues but just want to add one point on the "risk" of having Dad execute in a lucid moment (if any). It would be advisable to have the signing witnessed by a medical professional and visually recorded so that you can prove he was sufficiently competent to understand what he was signing and what the purposes of the document is all about. A picture says a 1,000 words but a videotape will be worth 1 million words under your circumstances.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.

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