Typically, clients call us looking for an elder law attorney when they are in a time of crisis. An elderly mother may have suffered a stroke or had a fall that suddenly puts her into a situation where she needs rehabilitation or nursing home care for the foreseeable future. Sometimes, families come to us when they realize that most senior citizens will need long-term care eventually (statistically, most will). This Medicaid pre-planning provides more options for the elder and their family. Once the family discovers that Medicare does not provide significant long-term care coverage, they come to the harsh realization that they may be forced to pay $5,000 - $8,000 a month, out of pocket, to get mom the care that she needs.Fortunately, the family was referred to our office and we can help qualify mom so that Medicaid pays most of her long-term care bills, while protecting her assets. The further in advance a family comes to use for Medicaid planning, the better. But, no matter what, the client has to have the capacity to sign our documents or a time consuming and expensive guardianship process may be necessary.

Certain documents need to be signed by the Medicaid applicant (or eventual Medicaid applicant if planning in advance), including an enhanced durable power of attorney (this allows someone trusted to make certain decisions when the elder cannot). The above link will take you to an article that will explain how our power of attorney differs from what most attorneys will provide. However, mom can only sign the enhanced durable power of attorney - or any document for that matter - if she knows what she is signing, that is, if she is alert and oriented.

In medical / nursing terms, I am trying to determine if the eventual Medicaid-recipient is “alert and oriented” enough to have the capacity to sign documents.

When is One Alert Enough to Sign Elder Law Attorney Documents

A&Ox3 (a/k/a Awake, Alert and Oriented or AAOx3) refers to the patient being alert and oriented to person, place and time: respectively, does the person know who they are (their name); where they are (in their apartment, in a hospital, in the particular city); and approximate time (hour, part of the day, or calendar date).

A&Ox4 (also AAOx4 – awake,alert and oriented) refers to someone who is alert and oriented to person,place, time and event. Does the person being evaluated understand who they are, where they are, approximate date or part of the day, and what is happening?

Many medical personnel believe that AAOx4 indicates a completely normal level of consciousness and orientation.

Questionable Capacity to Sign Power of Attorney

Someone who is A&Ox2 knows who they are and where they are, but not what time it is or what is happening to them. It is unlikely that someone who has a AAOx2 level of consciousness (or less) has meaningfully read and understand documents placed in front of them well enough to have capaity to sign a power of attorney or other elder law attorney document.

Many elder-law attorney clients have good days and bad days, even good parts of the day and bad parts of the same day. One might be AAOx3 or A&Ox4 while fresh in the morning or after taking medications, and as they lose stamina, perhaps the same person will drop to AAOx2 in the afternoon.

Any temporary period of time when someone may have capacity to sign important documents, is often referred to as a "lucid interval" - for example, dementia is a spectrum (just because one has a dementia or Alzheimer's diagnoses doesn't mean that they never have capacity to sign documents or make intelligent decisions). Someone with a dementia or Alzheimer's diagnoses might have capacity to sign documents if they still have lucid intervals.

For those who have questionable capacity, finding a lucid interval (if possible) is of create importance.

Our documents, especially our highly detailed and personalized durable power of attorney, provide our elder clients the tools they need to be able to act, even when they lose the capacity to do so.

Many powers of attorney (whether printed off of the internet or from a high-quality estate planning attorney) simply are not detailed enough for Medicaid-planning purposes. 

Determining whether our client is sufficiently "alert and oriented" must be clear. If our client's family indicates that their elder parent is more alert in the morning, or more oriented after taking medication we will take that into consideration. If necessary, we will meet with Medicaid-planning or Elder Law clients multiple times to make sure that they only sign when they are capable of understanding what they (and we) are doing.

As a practical matter, in assessing a client's capacity to execute a legal document, attorneys generally ask the question, "Is anyone going to challenge this transaction?" If a client of questionable capacity executes a will giving her estate to her husband, and then to her children if her husband does not survive her, it's unlikely to be challenged. If, on the other hand, she executes a will giving her estate entirely to one daughter with nothing passing to her other children, the attorney must be more certain of being able to prove the client's capacity.

While the standards may seem clear, applying them to particular clients may be difficult. The fact that a client does not know the year or the name of the President may mean she does not have capacity to enter into a contract, but not necessarily that she can't execute a will or durable power of attorney. The determination mixes medical, psychological and legal judgments. It must be made by the attorney (or a judge, in the case of guardianship determinations) based on information gleaned by the attorney in interactions with the client, from other sources such as family members and social workers, and, if necessary, from medical personnel. Doctors and psychiatrists cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment. But they can provide a professional evaluation of the person that will help an attorney make this decision.

If capacity is questionable, we may need to bring in a a neuropsychologist to test and confirm whether the elder individual has the capacity to make decisions and understand what he or she is signing.

Additional Article on Capacity to Sign Issues:

https://www.elderlawanswers.com/capacity-requirements-for-executing-estate-planning-documents-12129