When is "Incapacitated" Not Incapacitated?...

Over the 32 years of the Jacobson Law Firm's existence, we have prepared thousands of advance directives, a term that includes financial powers of attorney (FPOAs), medical powers of attorney, directives to physicians and other documents which are often designed to activate when the client isn't able to speak for himself/herself.  A client chooses whether the (FPOA) will be effective immediately or only "upon my disability or incapacity". If the client chooses the latter, in order for the designated agent to be able to act under the FPOA, a physician will have to say that person is disabled or incapacitated to such an extent that the person can't manage his/her own financial affairs.   Sounds pretty straightforward, right? Well, normally...

Recently, the children of a long-time client contacted us to say he had just had a massive stroke, could not move most of his right side and could not speak, and they needed to implement his FPOA so they could take care of his bills, etc.  We prepared a statement for the treating physician at the hospital to sign, stating that he was incapacitated and couldn't manage his financial affairs.  The physician refused to sign the statement.  The kids then asked the physician at the rehab center to which their dad had been transferred, who likewise refused to certify that this person who cannot move or speak was "incapacitated".  What to do?

Well, we figured that if his doctors say he's not incapacitated, he can execute a new FPOA that gives his kids the immediate authority to act on his behalf. The challenge was how to get him to sign the new FPOA.  In Texas, any adult can execute a document by "making his mark" on it. In frontier days, when a lot of people couldn't read or write, "making one's mark" was a way for an illiterate adult to sign legal documents.  We asked his children whether he could hold a pen, and they affirmed that he was nominally able to hold a pen.  So, we prepared a new FPOA, the kids explained to him what he was doing, and had him make his mark on it, with two witnesses and a notary signing as well.  It's a very small, indecipherable mark, but so far, nobody has refused to accept this FPOA.  There is, as they say, more than one way to skin a cat.

As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer.  If you need more information on advance directives, please contact an experienced Estate Planning attorney to discuss your particular circumstances.

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