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Executing a document in Texas when physical disability prevents signing

Notary and disinterested witness rule provides a practical solution

We are sometimes asked by potential clients about how they can get a power of attorney to sign a document or make decisions on behalf of someone who’s already incapacitated. The answer to that question is easy—you can’t.

When a person is already incapacitated, by definition they lack the capacity to sign a power of attorney, medical power of attorney, or will. In those situations, families may be left with one alternative, a filing for a guardianship, which is neither inexpensive nor quick.

Now’s a good time for a reminder that it’s always better to get a basic set of legal documents in place before there’s a sudden urgent need for them. These documents include a will, durable power of attorney (for business and financial decisions), medical power of attorney, and advance directive.

A less common similar question is how can a person of sound mind and capacity, but who is disabled, sign a power of attorney, deed, will, or other legal document?

Texas law provides a useful solution to this problem that balances the competing needs of security and convenience.

Texas Government Code Section 406.0165 is entitled “Signing Document for Individual With Disability.”

The statute allows a notary to sign the name of an individual who is physically unable to sign or make a mark on a document if:

• The individual directs the notary to do so.

• It’s done in the presence of a disinterested witness, meaning someone who has no legal or equitable interest in the document being signed.

• The notary uses the normal procedure to verify the identification of the witness.

When signing the document, the notary writes under the signature this text, or something substantially similar: “Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code.”

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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