Years ago, I took a phone call from a potential client requesting our urgent assistance in preparing a will for her hospitalized husband. She wanted us to prepare the documents, travel to the hospital, and provide a notary and witnesses—and it needed done pronto.
As we got into the discussion, I learned that her husband was unconscious, facing a surgery the next day, and not expected to survive. When I explained that a person must be awake and sufficiently alert to demonstrate capacity to sign a will, she asked if we could just do a power of attorney instead. Needless to say, we couldn’t help her in the situation.
It reminds me of another situation with a different client many years ago. A wife was hospitalized and unconscious. She and her husband maintained separate bank accounts. Her pension was deposited into her checking account, but the husband had no way of accessing those funds that were necessary to cover some of her medical bills and their health.
Both situations would have been easily and inexpensively avoided if the individuals involved had planned ahead and executed some key legal documents.
Key legal documents everyone should have
At a minimum, we recommend that every adult in Texas should have these legal planning documents in place:
• A will: This document addresses how you want your property to be distributed upon your death. If you have minor children, it also identifies who you would like to designate as their legal guardian.
• A medical power of attorney: This document identifies your legal surrogate for making health care decisions on your behalf. Hospitals, physicians, and nurses will typically respect this document when discussing care, obtaining informed consent, or to obtain treatment decisions.
• A durable power of attorney: This document identifies your legal surrogate for making financial care decisions on your behalf. This is useful to allow a designated agent to make business, banking, and financial decisions on your behalf. It can be written in a way that it takes immediate effect or only becomes effective on the event of your incapacity.
• An advance directive: This document deals with end-of-life issues, stating your preference for resuscitation and continued curative care under a variety of situations.
Unfortunately, many people don’t think about these documents until it’s too late. That’s understandable, though, because life can be busy.
Signing legal documents for individuals with a disability
What about the situation of a person who is physically unable to execute a legal document, but otherwise is of sound mind and has sufficient capacity to do so? We encounter this sometimes with patients who have serious disabling injuries from medical malpractice. They may need assistance in signing a contract or a medical or durable power of attorney to designate an agent to assist them.
As an initial matter, a signature doesn’t have to be a beautiful work of art. A person can adopt a mark, such as an X, as his or her signature. There are situations, though, where a person physically can’t even do that.
Texas Government Code Section 406.0165 defines a “disability” as a physical impairment that impedes the ability to sign or make a mark on a document. In these situations, the statute provides that:
(a) A notary may sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization if directed to do so by that individual, in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed. The notary shall require identification of the witness in the same manner as from an acknowledging person under Section 121.005, Civil Practice and Remedies Code .
(b) A notary who signs a document under this section shall write, beneath the signature, the following or a substantially similar sentence: “Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code.”
(c) A signature made under this section is effective as the signature of the individual on whose behalf the signature was made for any purpose. A subsequent bona fide purchaser for value may rely on the signature of the notary as evidence of the individual's consent to execution of the document.
A last resort: Guardianships
In cases where a person doesn’t have legal planning documents in place and is unconscious or lacks sufficient capacity to make decisions, guardianship may be the last resort.
Guardianship is a legal process where a court appoints a guardian to have legal authority over an incapacitated person (called a ward). This is a serious proceeding and involves the judicial determination that essentially revokes a person’s decision-making rights. Thus, it’s understandable that Texas law mandates due process, notice, and other protections. In other words, it’s not a quick and easy process.
If you need help in getting your legal documents in place, we can help. We are also available for free consultations about serious injuries related to healthcare in Texas.