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What is the rule when a person cannot hold a pen to execute a power of attorney?

What is the rule when a person cannot hold a pen to execute a power of attorney?

Full question:

My dad is in the hospital with liver failure. He needs to appoint a power of attorney. I have downloaded the proper forms from US Legal Forms. He cannot hold a pen to sign the form but he is able to speak his wishes. We want someone to sign for him. What are the rules? who can do it? What does the person write? The form has a portion for two witnesses to sign but not an area for a notary. I have been told that I need a notary. Can you clarify?

Category: Power of Attorney
Date: 04/07/2025
State: New Mexico

Answer:

Unfortunately, no one will be able to sign a power of attorney for him. The principal must have mental capacity to make or revoke the power of attorney at the time of signing. Legal capacity generally means to have an understanding of the nature of the action and its consequences. When a person is incapacitated, he/she is unable to sign a will, codicil to a will, power of attorney, or a revocation of the same. We suggest discussing his mental capacity to sign a contract with his physician.

In most cases, a legal document, assuming mental capacity existis, must be signed in the person's own handwriting or with the person's mark if he/she is not able to write. Occasionally it is acceptable also for the person's name to be written by some other person at the person's request and in the person's presence.

The statutes in Kentucky affecting power of attorneys do not specify although they do allow the making of a mark instead of full signature for execution of a deed.

If mental capacity is questioned, it may be necessary to petition the local probate court for appointment of a guardian or conservatorship.

I am not certain which form you were referring to that was missing the notary section. Upon examination of each form in the NM-P001-PKG, the appropriate notary lines were seen.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What three decisions cannot be made by a legal power of attorney?

A legal power of attorney cannot make decisions regarding the principal's own divorce, create or revoke a will, or make decisions about the principal's medical treatment if they have previously expressed their wishes in an advance directive. These limitations are in place to ensure that personal and sensitive matters remain under the principal's control, especially when they have expressed their preferences.

How do you get power of attorney when a person is incapacitated in the US?

To obtain power of attorney for someone who is incapacitated, you typically need to petition the local probate court for guardianship or conservatorship. This legal process involves demonstrating the individual's incapacity and showing that you are suitable to manage their affairs. The court will review the evidence and make a determination based on the best interests of the incapacitated person.

How to get medical power of attorney if person is incapacitated?

If a person is incapacitated, obtaining a medical power of attorney involves a court process to establish guardianship or conservatorship. You will need to file a petition with the probate court, provide evidence of the person's incapacity, and demonstrate that you are fit to make medical decisions on their behalf. The court will then appoint you as the legal representative for medical decisions.

How to get power of attorney over an incapacitated person?

To get power of attorney over an incapacitated person, you must file a petition in the probate court for guardianship. This process involves proving the person's incapacity and showing that you are qualified to manage their affairs. The court will hold a hearing to assess the evidence and decide whether to grant you authority as a guardian.

What does incapacitated mean in POA?

In the context of power of attorney (POA), 'incapacitated' refers to a person's inability to make informed decisions about their own affairs due to mental or physical conditions. This can include severe cognitive impairment, illness, or injury that affects their understanding or judgment. Determining incapacity often requires a medical evaluation.

How to get power of attorney for someone who is mentally ill?

To obtain power of attorney for someone who is mentally ill, you typically need to petition the probate court for guardianship or conservatorship. You must provide evidence of the individual's mental illness and demonstrate that they cannot make informed decisions. The court will evaluate the situation and decide whether to grant you the authority to act on their behalf.