There are many and varied situations when a person needs someone else to sign for, and/or to represent, their interests. These situations can arise because the person is a minor (under age 18), is physically or mentally incapacitated, is unavailable (e.g., incarcerated), or is subject to a Conservatorship.
Persons under age 18 are unable to sign for and unable to represent their legal interests due to their minority, a legal disability. Minors need a parent — or a court appointed Guardian — to control and manage their health care and legal affairs. A parent can only accept delivery of money or other property for a child in very limited circumstances that do not exceed $5,000. Otherwise a Guardian of the Minor’s Estate, often a parent, needs to be appointed by the Court to manage the minor’s assets. A Foster Parent may only consent to ordinary medical and dental treatment for their foster child (e.g., immunizations, physical exams, and x-rays).
Alternatively, with advanced planning, assets – such as gifts and inheritances — can be held for the minor’s benefit if they are titled to a Custodial Account (under California’s Uniform Transfers to Minor’s Act) or to a Trust.
A Person who is physically unable to sign documents — but still understands the nature and effect of the document — can direct another person, called an Amanuensis, to sign the incapacitated person’s own name on the document in the incapacitated person’s presence.
Because the Amanuensis is merely performing a ministerial task, at the will and the direction of the person whose name they sign, the Amanuensis is not acting as an Agent with delegated authority. The Amanuensis should be a disinterested person, i.e., with nothing to gain or to lose.
For example, a paralyzed person with understanding can direct an Amanuensis to sign the paralyzed person’s will in their presence. The Amanuensis would sign the paralyzed person’s name, and not mark an “X”. The Amanuensis should not be a beneficiary; otherwise a rebuttable presumption applies that any gift to Amanuensis is invalid.
Preferably, however, if paralyzed person who can still scribble their signature they should sign their name – albeit totally illegibly – with their own hands or mouth to hold the pen.
An adult person who is not competent to sign a document or to control and manage their assets, finances and legal affairs usually requires an Agent, acting under a duly executed Power of Attorney, or else a court appointed Conservator. The Agent under the Power of Attorney can sign documents and can approve actions if they are within their delegated authority. A Conservator likewise can sign documents and can approve actions within the scope of their court granted powers, or pursuant to a Court Order authorizing a particular transaction.
Only a Conservator of the Estate of an incapacitated person can sign a will on behalf of the conserved person. Doing so first requires a Substituted Judgment Order approving the will to be signed.
An Agent under a Power of Attorney, however, cannot sign a will. An Agent can establish a Trust or can either amend or revoke an existing Trust, if such authority was delegated to the agent inside the incapacitated person’s Durable Power of Attorney.
Furthermore, if an incapacitated person is married the incapacitated person’s spouse can control and manage the couple’s Community Property assets. The spouse’s authority to manage Community Property assets overrides any delegated authority given to an Agent to manage assets; the Power of Attorney still applies to the incapacitated person’s separate property assets.
Physical and mental incapacity can arise suddenly and unexpectedly. Delegating authority to an Agent under a Power of Attorney and to an Agent for health care decisions under an Advance Health Care Directive may avoid a court supervised Conservatorship. The potential benefits, not to mention peace of mind, makes having both a well drafted Durable Power of Attorney and an Advance Health Care Directive prepared by a qualified Attorney a wise investment.
“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”