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.”
