It is easier than you may imagine. A living Wills is frequently signed by persons who are receiving care from relatives or in‑home nursing staff, as well as persons in assisted care facilities. Those persons typically “phase in and out“, thereby having lucid moments during the day. Thus, this is an important question that applies to more and more people.
How to determine the competence for a living will
Some of the factors used to determine competence for a living will are:
- Alertness and attention;
- Information processing; and
- Thought processes and mood changes.
The bottom line is that one cannot execute such a document if his or her mental functions are significantly (i.e. in large measure) interfered with so as not to understand and appreciate what they are doing. Remember that the mere diagnosis of a mental or physical disorder is not alone enough to prove unsound mind. In general, a person has sufficient capacity to execute a living will if they
- understand the kind of document they are signing;
- know what kind of property they have; and
- remember and understand who their living relatives are. Less capacity is required to execute a Will as is required to sign a contract.
How do the courts look at this situation?
By in large they tend to side on finding the living Will or Trust were validly executed. To rebut the validity of the instrument, someone must come forward as a credible witness and show that the person was not capable at the exact time he or she signed the paper. For example, in one actual case, the decedent suffered from Arteriosclerosis 1)https://medlineplus.gov/atherosclerosis.html, a softening of the brain, high blood pressure, partial deafness, and a progressive and incurable brain degeneration. The Appellant Court 2)https://en.wikipedia.org/wiki/Appellate_courtactually found the living Will was validly signed, since there was no witness offering testimony that at the time she signed it, she was unable to understand its effect.
The signing of a living Will or Trust is a solemn occasion and nevertheless, care should be made to insure that the person understands what they are doing, and are not the subject of fraud, mistake, or undue influence. If there is any doubt, please consult an attorney.
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