Getting documents signed when cognitive decline has already started — what's still valid

This article is for educational purposes only and does not constitute medical, legal, or financial advice. Every family situation is different, and you should consult with appropriate professionals about your specific circumstances.

You finally brought it up. You asked your father if he'd be willing to sign a power of attorney. He agreed. You got an appointment with an attorney. The attorney asked your father some standard questions to assess his capacity. Your father got several of them wrong. He couldn't remember what year it was. He couldn't remember what medications he was on. He seemed confused about where he was. The attorney turned to you and said, "I can't draw this up. He doesn't have capacity to sign a valid power of attorney."

You'd known something was wrong. He was forgetting things more often. He'd gotten lost driving to a familiar place. He couldn't remember conversations from the day before. But you'd held onto hope that he could still handle his affairs. Now you're facing a difficult reality. The window for getting documents signed might be closing. But you're not at the end of the line yet. There are things that might still be possible, and understanding what documents might still be valid even with declining capacity could make the difference between having some control over what happens and having no control at all.

Capacity is not binary. It's not that someone is either capable or incapable. Capacity exists on a spectrum, and it can be different for different decisions. Your parent might not be capable of executing a complex power of attorney, but they might still be capable of signing a simpler document. They might not be capable of one day and be capable the next day. They might be capable in the morning when they're less tired and not capable in the afternoon. Understanding what documents might still be possible and what that means is important right now.

Understanding the Basics

Capacity is the legal and mental ability to understand what you're signing and to comprehend the consequences of that decision. To execute a valid power of attorney, your parent needs to understand what a power of attorney is, who they're giving authority to, what authority they're giving, and what that means. If your parent doesn't understand these things, they don't have capacity to sign a power of attorney.

Different documents have different capacity requirements. Some documents require more capacity than others. A simple healthcare power of attorney might require less capacity than a complex financial power of attorney. A will might require less capacity in some states than a power of attorney. Understanding these differences matters because your parent might be capable of signing some documents but not others.

The evaluation of capacity is specific to the document. An attorney can't just ask your parent some general questions and decide whether they have capacity for everything. The attorney has to assess capacity specifically for the document being signed. What does your parent need to understand to validly sign this particular document?

Here's what makes this complicated. If your parent signs a document without capacity, it's not valid. If you later try to enforce it, someone can challenge it and say it's invalid because your parent didn't understand what they were signing. That's a problem. You might need legal authority and think you have it, but it could be worthless if someone contests it.

But that also means there's incentive to get an assessment done. If your parent signs a power of attorney with a good assessment of capacity, documented by the attorney or by a physician, that document is much stronger. If someone later challenges it, you have evidence that your parent understood what they were signing. That evidence protects the validity of the document.

Some states have specific legal standards for capacity to execute a power of attorney. Some states don't. Some states require a physician's affidavit confirming capacity. Some don't. The specifics depend on where you live. An attorney who practices in your state can tell you what the law requires.

There's also the question of contested situations. If your parent signs a power of attorney and later someone contests it saying your parent didn't have capacity, the court will evaluate whether your parent had capacity at the time of signing. The court will look at evidence. What did the attorney observe? What did the physician observe? What was your parent's condition? What did your parent say? If the evidence shows your parent understood what they were signing, the document will likely be upheld. If it's unclear, the court might invalidate it.

This is why getting a capacity evaluation done by an attorney or a physician is important. It creates documentation. It creates a record. It makes the document much harder to challenge later.

Your Parent's Specific Situation

You need to assess where your parent is right now. Are they still capable of understanding the documents that need to be signed? The only way to know for sure is to have an attorney evaluate them.

Ask your parent's physician about capacity. The doctor sees your parent regularly and can offer observations. But the physician doesn't do a capacity evaluation the way an attorney does. You might need both. The attorney asks specific questions about understanding the document. The physician can confirm whether your parent has cognitive impairment that would affect capacity.

Be honest with yourself about what you're observing. If your parent is forgetting important information, getting confused, having trouble with complex decisions, these are signs that capacity might be declining. That doesn't necessarily mean they've lost capacity. It might mean they're on the border. But it means you need to move quickly. You don't have time to wait.

If your parent is still capable, get the documents signed. If your parent is borderline, talk to an attorney about the options. If your parent is clearly incapable, you're probably looking at guardianship down the road, which means you have different decisions to make right now.

You also need to think about what documents matter most. If your parent has no real assets, financial power of attorney might be less critical. If your parent has significant assets, it becomes more important. If your parent's health is declining, medical power of attorney becomes very important. Think about what decisions are most likely to need to be made and what documents address those decisions.

Your parent also needs to be willing to sign. Even if your parent has capacity, if they refuse to sign a power of attorney, you can't force them. This is their right. But the consequence is that if they later lose capacity, you'll need to go through guardianship. You can be honest about that. "If you don't sign a power of attorney now and you lose capacity later, I'll have to go to court to get guardianship authority. That's public and expensive. Signing a power of attorney now lets you choose who makes decisions for you instead of having a judge decide."

Taking Next Steps

Contact an elder law attorney. Describe your parent's situation. Tell the attorney about the cognitive changes you've noticed. The attorney can talk with your parent, assess capacity specifically for the documents that need to be signed, and advise you on what's possible.

If your parent is still capable, move quickly. Get the documents signed and properly executed. Don't delay. Capacity can change. Don't wait and hope it improves. If your parent can sign now, sign now.

If your parent is borderline on capacity, the attorney might suggest a physician evaluation. The physician can assess your parent's cognitive state and provide documentation. That documentation, combined with the attorney's observations, creates a stronger record if the document is ever challenged.

If the attorney concludes your parent is not capable, ask what the options are. In some cases, even though your parent isn't capable of a full power of attorney, they might be capable of a more limited document. Some states allow a limited power of attorney with narrower scope that requires less capacity. Some states allow simple healthcare decisions to be made without full capacity. Ask what's possible in your state.

If your parent is not capable and there's no way to get documents signed, you're looking at guardianship eventually if your parent loses capacity and there's no power of attorney. That's not a decision you need to make right now, but it's something to be aware of. Some families start the guardianship process early to avoid the crisis of doing it suddenly when someone has a stroke or falls and breaks their hip.

If you're getting documents signed despite cognitive decline, make sure the process is properly documented. Have the attorney note in the file what capacity questions were asked and how your parent answered. If the attorney has any concerns, have them documented. Have a physician evaluate capacity if possible. Keep copies of all evaluations. This documentation protects the validity of the documents.

Once the documents are signed, keep them somewhere safe. Give copies to the people who need them. Make sure your parent's healthcare providers know about the healthcare power of attorney. Make sure relevant financial institutions know about the financial power of attorney. When your parent loses capacity, you'll be able to produce these documents and start using the authority they give you. You won't have to go to court. You won't have to wait. You'll have authority because your parent gave it to you while they still could.

This is one of those situations where timing really matters. If your parent's cognitive decline is just beginning, you still have a window where they might be capable of signing documents. That window closes. If you're noticing changes, bring it up now. Don't wait. An attorney can assess capacity and tell you whether your parent can still sign. If they can, you're in a much better position than if you wait and lose the opportunity.

How To Help Your Elders is an educational resource. We do not provide medical, legal, or financial advice. The information in this article is general in nature and may not apply to your specific situation. If you are concerned about a loved one's cognitive health or safety, consult with their healthcare provider or contact your local Area Agency on Aging for guidance and support.