Episode 79: How Do You Know If Mom Can Still Sign
Episode 79
Host: Jill Mastroianni
How Do You Know If Mom Can Still Sign
What happens when someone with memory changes needs to sign a will, trust, or power of attorney? Who actually decides whether they’re “competent” enough to sign, and what happens if people disagree?
In this episode, Jill Mastroianni share personal stories involving her own mom, a deathbed signing that never happened, and what the law actually says about mental capacity and estate planning. We talk about why competency is not an all-or-nothing question, who acts as the initial gatekeepers during a signing, and why families often begin asking “Can Mom still sign?” when they’re already standing in the middle of a crisis. Most importantly, we talk about why estate planning works best when decisions are made from a place of choice, not urgency.
What You’ll Learn in This Episode
Why “competent” is not a simple yes-or-no determination
The difference between testamentary capacity and contractual capacity
Why someone may be able to sign a will but not a power of attorney
The four things a person generally needs to understand to sign a will
Why dementia does not automatically mean someone lacks legal capacity
Why attorneys sometimes refuse to let a client sign documents
The risks and concerns that can arise when adult children request standalone powers of attorney
The role of notaries and witnesses as gatekeepers, but not final decision-makers
What courts look at when capacity is challenged after a signing
Why moments of lucidity matter in capacity determinations
Why families often wait too long before starting important conversations
The hidden systems we all carry in our heads—passwords, finances, routines, healthcare information, and family details
Why timing matters more than most families realize
Resources & Links
Watch this episode on YouTube: https://youtu.be/coX3guCoFMI
The Death Readiness Playbook: https://www.deathreadiness.com/playbook
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
Learn more about Jill’s solutions
Subscribe to the Death Readiness Dispatch!
Ask a question for Tuesday Triage
Did you enjoy this episode? Share it with someone you care about.
-
What happens when someone with memory problems needs to sign a will, trust, or power of attorney? Who decides whether they’re “competent” enough — a notary, a witness, an attorney, or someone else entirely? Today, I’m sharing personal stories involving my own mom, a deathbed will signing that never happened, and what the law actually says about who gets the last word when questions about mental capacity arise.
Welcome to The Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni — estate planning attorney, death readiness guide, and your translator for wills, trusts, probate, and the conversations most families avoid. If you’ve been wondering things like, ‘Can a trust protect what I leave to my children?’ ‘What happens if I give someone power of attorney over me?’ and ‘How can I help my parents while respecting their independence?’ You’re in the right place.
When I was in law school, my Wills and Trusts professor told our class about a mistake he made in practice. He represented clients in New York City and was supervising a document signing there. During the signing, everyone had gotten relaxed and conversational. The client was talking about where she planned to go for lunch afterward, and my professor wasn’t paying close enough attention to make sure she signed and initialed everywhere she needed to.
Later, he realized that she had failed to sign one of the documents, and it was a document that needed to be notarized.
Normally, that wouldn't have been a big problem. He would just call the client back in to re-sign. Except by then, she was no longer physically able to leave her apartment.
So he had to figure out another solution. Nowadays, we’re used to mobile services, Amazon drones, DoorDash, but this was in 2010. Luckily, it was also New York City, and you can find anything in New York City. And that was the first time he learned about mobile notaries. So, he hired a mobile notary to go to this client’s apartment and notarize her signature on the required document.
At that same time, my own parents were living in Manhattan. My mom had begun suffering from what we later learned was a condition called progressive supranuclear palsy, although at the time we didn’t yet understand exactly what was happening.
My dad told me he needed my mom to sign a document in front of a notary public. The document authorized a financial professional to access information so they could help evaluate future care options. My dad was worried that getting my mom out of the apartment would be difficult.
But I remembered my professor's story. So when I came home during spring break, I arranged for a mobile notary to come to my parents’ apartment.
Before the appointment, I sat down with my mom and explained the document. I told her what it did, what signing it meant, and that someone would be coming simply to witness her signature and notarize it.
Then the notary arrived.
He sat with my mom and asked a simple question:
"Do you understand what you're signing today?"
And my mom got a little confused.
She thought she was signing a financial power of attorney.
I remember sitting there next to my mom as he assessed the situation — my mom sitting there, me sitting next to her as her adult child, and him trying to decide whether she understood enough to proceed.
Eventually he said something like:
“Well, she's actually not giving someone as much authority as a power of attorney would.”
And he notarized the document and left.
How did he decide? What was he looking for? What if she had been signing something different? What if it had been a will? Or a power of attorney?
And that question, how do we determine whether someone has the mental capacity to sign estate planning documents, and who makes that call, is exactly what we're talking about today.
Before we get started, today’s episode is all about timing. Because there are some conversations and decisions we wait way too long to have. The Death Readiness Playbook was created to help you start before urgency takes over, not just with legal documents, but with all the information and details your loved ones would need if life suddenly changed. Learn more at deathreadiness.com/playbook. That’s deathreadiness.com/playbook.
So what does it actually mean when someone is “competent” to sign estate planning documents?
Legally, competency isn't an all-or-nothing label. It’s not a switch where someone is either fully competent or completely incompetent. And the level of competency needed to sign a document can actually vary depending on what document you’re signing.
A lot of people assume there's one universal test. But there isn't.
For today’s example, I’ll talk specifically about Tennessee law but the law is similar across jurisdictions.
For a will, the standard is whether a person has testamentary capacity, and that standard is actually lower than the standard required for contracts and some other legal documents.
For a person to have testamentary capacity, or capacity to sign a will, they don't need to understand every legal nuance or remember every detail of their life story.
But they need to understand a few things:
#1: That they’re making a Will?
#2: The property that they own,
#3: The quote “natural objects of their bounty,” which is just a fancy way of saying the people they’d normally leave things to, like a spouse or children, and
#4 where they want their property to go?
The law doesn't say someone has to have a perfect memory or even not be suffering from dementia. In fact, I recently did estate planning for a married couple. And during our representation, the wife was diagnosed as being in the early stages of Alzheimer’s disease. I was still comfortable that she understood the estate plan and she and her husband were creating and that the plan was consistent with her wishes.
But sometimes, the right decision is not letting a client sign. At the very first law firm where I practiced, the managing partner asked me to come with her to visit a client. I was still a young attorney and my role was simple: I was supposed to serve as a witness to a will signing.
The client was very ill and was in bed. This was a deathbed signing. The plan was for her to execute updates to her will.
The managing partner went into the bedroom to speak privately with her client, and I waited outside with another person who was there to notarize the client’s signature.
A few minutes later, the managing partner came out of the bedroom and simply said, “The client’s no longer competent to sign.” And so we left.
There was no attempt to push through because everyone had already made the trip or because the client had wanted these changes.
The client wasn't competent to sign, and that ended the conversation.
The client died shortly afterward and never made those updates to her will.
And that experience was so powerful, especially as a young attorney, because I learned a really valuable lesson: determining whether someone can sign documents isn't about what outcome we want, about whether the family really needs this paperwork done or whether everyone drove a long way to get there. Sometimes the answer is simply no. And sometimes protecting a client means refusing to let them sign.
In Tennessee, where I practice, powers of attorney, trusts, and other transactional documents often require a higher standard of capacity, something closer to contractual capacity. That’s because we’re asking a person to understand more complicated legal relationships and broader consequences that can affect their lives immediately and significantly.
So someone could potentially have the capacity to sign a will, but not have the capacity to sign a more complex estate planning package.
I’ve mentioned before on this podcast that I do not take on new clients solely to draft powers of attorney. And to be fair, the only time I usually get those calls is when an adult child contacts me and says something like, “I need authority to make decisions for my parent.”
Now, could that be completely legitimate? Absolutely. Sometimes families are facing very real crises and are trying to help someone they love.
But from my perspective, that situation does raise concerns.
Because when the first conversation is centered around obtaining authority over someone else, before I’ve developed any relationship with the person signing, before I understand their goals, wishes, family dynamics, or whether anyone else is involved, I’m missing a lot of context.
When I prepare a broader estate plan—a will, trust, powers of attorney, healthcare documents—I spend time getting to know the client. I learn about their family, their goals, who they trust, what worries them, and what they want their legacy to be.
Those conversations aren't just about gathering information for documents. They're also how I become comfortable that the person understands what they’re doing.
A standalone power of attorney is different.
From a drafting perspective, the questions are simple:
Who do you want to make decisions for you if you can’t make decisions for yourself?
Do you want that authority to be effective immediately, or only if you become incapacitated?
These are simple questions and the answers really don’t give me the necessary insight into a client’s level of understanding of the broader implications of a power of attorney document.
When someone is giving another person authority to manage finances, sign documents, access accounts, and potentially make major decisions on their behalf, I want to be especially careful.
But who has the last word as to competency? A notary public or a witness to a signing are not the final word on whether someone has the capacity to execute a document. They’re just the initial gatekeepers.
They're making a judgment call in a moment. They're asking themselves: Based on what I'm seeing right now, does this person appear to understand enough for me to move forward?
So when a notary or a witness signs off, it’s not as if the notary or witness has performed a full competency evaluation. A notary stamp or a witness’ signature is not a guarantee that a person had legal capacity to sign a document. It’s just that at the time of the signing, the notary public or witness felt comfortable notarizing or signing the document.
Now, an attorney can refuse to allow a signing, or a witness can say they don’t feel comfortable, and that stops the process entirely.
But if they do allow the signing? That doesn't necessarily end the conversation.
After someone dies, or after a power of attorney starts being used, people can challenge those documents.
And when they do, a court can take a much broader look at the person’s cognitive health.
Evidence of competency, or a lack of competency, might include medical records, caregiver notes, testimony from family members, neighbors and friends about appearances, conduct and state of mind.
For Wills in particular, which requires a lower standard of capacity than contractual documents, Tennessee courts focus heavily on the person's condition at the time of signing, but they can also consider what was happening before and after that date if it helps paint a more comprehensive picture.
A person suffering from dementia can have a moment of lucidity at which time they might be competent to sign their Will, whereas they very well might not have been competent to sign that same day even a few hours later.
I think the takeaway from today's episode isn't that competency is complicated, although it is.
The takeaway, I think, is that capacity isn't something we should wait around and test at the last possible moment.
Families often call when they're already standing in the doorway of a crisis. Memory changes have already started. Maybe the family has just received a diagnosis. And the question we’re suddenly asking is, "Can Mom still sign?"
And by then, of course, everyone is hoping for a yes.
But estate planning works best when we're making decisions from a place of choice, not urgency.
Once people start asking whether someone can sign, we're often already very close to a day when they can't.
And today's episode wasn't really about signatures.
It was about timing.
Because documents aren't the only things that become harder with time. We carry entire systems in our heads, information about finances, healthcare, routines, passwords, insurance, family history, and all the invisible details that make our lives run.
Those things matter, too. That’s why I created The Death Readiness Playbook, to help you get that information out of your head and into one place before your loved ones need it.
Not while you're standing in the middle of a crisis or while everyone is hoping for one last signature.
Now, while you're still making decisions from a place of choice.
You can learn more at deathreadiness.com/playbook. That’s deathreadiness.com/playbook.
Thanks for listening today.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.
