disabled people and legal documents
April 13, 2010 10:28 AM   Subscribe

How can a disabled (paralysed) person sign a legal document?

Hi all. I understand, you are not a lawyer, but I could really use some help in trying to figure out how to answer this question.

An elderly relative -- with all his mental faculties -- has had a serious medical problem that has left him partially paralyzed and unable to write. He is in the hospital awaiting transfer to a rehabilitation center, and he is ready to sign a power of attorney for a family member to help him manage his financial affairs.

However, the family has hit a snag, because the notary at the hospital won't notarize the document until she is satisfied that however he signs it, it is legally acceptable. Someone on the hospital staff, a nurse i think, called a legal help-line for advice, and was told that it was acceptable for someone else to make the mark for him as long as it was properly witnessed (i don't have all the details on that, but the family did get details). Now, however, the notary won't follow the procedure unless she has a written statement that it would be all right.

The power of attorney was drawn up using a do-it-yourself kit, so the family can't actually go "back" to the lawyer who drew it up to get the answer. They've been trying to solve this but with absolutely no luck.

Does anyone have any idea what the solution to this problem would be? What would be the procedure for a person who cannot sign (not even to make an "x") to somehow "sign" a document? I am absolutely amazed that it's been so difficult to find out. You would think this would not be an unheard of issue, particularly in a hospital -- I mean surely disabled people get around signing documents every day?!?

Or, does anyone have any suggestions on how/where I could find the answer?

We're totally mystified.

Oh, yeah, PS, this is all happening in the state of PA.
posted by leticia to Law & Government (15 answers total)
Usually fingerprints suffice for this purpose.
posted by dfriedman at 10:30 AM on April 13, 2010

Umm, I'd suggest you bring your own notary. It might be easiest to accomplish this, and get a workable POA in place, by hiring a lawyer for your relative.
posted by bearwife at 10:32 AM on April 13, 2010 [1 favorite]

Not very dignified, but could he hold a pen in his teeth? Then the notary could witness him signing the document.
posted by Jacqueline at 10:37 AM on April 13, 2010

Response by poster: I did think about the holding-the-pen-in-the-teeth approach. I also felt it was not very dignified, but now I'm beginning to wonder if that may be the way to go. But it's odd to me that the hospital notary didn't offer this suggestion....
posted by leticia at 10:41 AM on April 13, 2010

Pen in mouth is a common form of use - enough that there is an international mouth and foot painting association. I point this out because there are photos on the site of artists at work mouth painting, and it's really not inherently undignified.
posted by Coobeastie at 10:46 AM on April 13, 2010

A guy I went to high school with was disabled, and a painter. He painted with the brush on a special headband around his head. (He was quite good, and there was a movie about him on HBO at one point.)
posted by drjimmy11 at 10:53 AM on April 13, 2010

If it is possible, video tape him signing in case there is any dispute later on.
posted by JohnnyGunn at 10:56 AM on April 13, 2010 [1 favorite]

IAAL but IANYL and this is NOT my area of practice.

It seems that you are really dealing with three somewhat separate issues:

1. What is a legally sufficient signature?
2. What will satisfy the hospital notary / can you get a notary with fewer qualms?
3. What other documentation might be helpful to have, given that this is a little out-of-the-ordinary?

I think the third question is the hard one (and the one you may want to spend time talking to a lawyer about).

The "X" or the signing by someone else at the patient's direction may be perfectly legally valid, but if you are contemplating any potential conflicts or questions about the POA, it may be worthwhile to prepare supporting documentation. (Or I may just be being a paranoid litigator.)

So the do-it-yourself kit might be 100% fine for getting you to a valid POA, and the "X" or pen-in-mouth thing is probably going to be a legally binding signature, but using the POA and defending it against those who might question it -- that takes you into areas where the do-it-yourself kit may not be raising the right issues.

As an aside, this might be an excellent opportunity for your relative to update his will or other estate planning documents. If you talk to an attorney about that stuff, the POA/signature issues will likely be collateral issues that should not cost anything extra. (In other words, you might be able to get a flat fee to prepare the will, and get help with the signature/POA issues included in that price.)
posted by QuantumMeruit at 11:00 AM on April 13, 2010 [1 favorite]

Is the relative mentally competent, meaning do they have the mental capacity to make their own financial and contractual decisions and also to express their requests? Put in terms you may be more familiar with, are they of sound mind?

The legal definition of capacity varies by state, but if ability to physically sign is in question sometimes that raises the question of mental capacity. If intellectual disability accompanies the stated physical disability (and certainly it does not always do so), then the person needs a guardian or conservator, depending on state law, to sign on their behalf. As a general thought process to trigger further research, a third party can sign if granted power of attorney. Power of attorney may only be granted by a mentally competent person. If not mentally competent, the court rather than the individual designates a signatory. The court-designated individual has the power to sign certain documents for the patient. That person has a fiduciary duty to act in the best interest of the patient, and can do things in the patient's best interest even if the patient doesn't necessarily agree.

Videotapes, notaries, proof of actual signature might not be effective protection without mental capacity. Proof of actual signing, without legal capacity to sign, could be irrelevant. My guess is that this is the concern the notary is aiming at.
posted by bunnycup at 11:28 AM on April 13, 2010

IANAL, BIAAPWD. If I were him, I'd find an old signature, scan it, and have a signature stamp made out of it. And I'd keep it in a safe place while I signed up for online banking, and kept control of my own financial affairs.
posted by Soliloquy at 11:35 AM on April 13, 2010

I am (or was) a lawyer but not a PA lawyer (ACT, Australia) and I have actually dealt with similar issues. YMMV. If he can make a mark (the traditional cross or whatever else), there ought to be a procedure for having that attested as his mark. If he cannot make a mark (I think doing it with a pen held in the mouth is perfectly OK) but can speak or make his intentions known clearly in some other way, someone else can make a mark for him. The standard form of attestation as I remember it includes something like "the instrument was read over and explained to him and I am satisfied that he understood the nature and effect of it". A prudent notary will want to be sure this is so. But yes, consult a lawyer. And yes, you need to do as much as you can to put it beyond challenge.
posted by Logophiliac at 11:39 AM on April 13, 2010

Response by poster: Thank you all for the suggestions thus far.

I actually AAL too, or at least trained as one -- but for most of my career, I have worked in a law-related position in *completely* different field, and outside of the US, to boot.

I've looked at the PA statue on POA, and it's clear that the state considers the person's "mark" to be legally sufficient, and all the family members are on board and on the same page, so I really have no expectation of anything being challenged by the family members.

I'm leaning more and more toward encouraging the mouth/pen mark route. He is mentally competent, and has the capacity for decision making and making his wishes known to others. The only hold up here is the method, and this seems the most straightforward approach -- the notary should be able to verify his identity, and attest to the fact that he made the mark, so that should be enough, right?

I will definitely tell his family to consider the get-a-lawyer-for-a-will-plus approach suggested by QuantumMeruit -- i hadn't thought of that.

Soliloquy: couldn't there be problems with merchants/companies/etc. not accepting a stamped signature?

thanks again!
posted by leticia at 11:55 AM on April 13, 2010

IAAL, and I'd totally go the notary route. To be legal, a "signature" really only has to be some mark indicating assent. This is why electronic signatures work. It can be your name, an "X", your fingerprint anything really. The legitimacy of the signature really only becomes an issue in cases of forgery, i.e. when there's some reason to believe that the person in question didn't actually sign the document and some sort of fraud is suspected.

Still, getting a lawyer is probably warranted just in general, the signature issue aside, so it looks like you're probably covered.
posted by valkyryn at 1:11 PM on April 13, 2010

I've never had a problem with that; it's quite common for companies and very rich people to pay for things with stamped checks, so it doesn't seem to be too much of a stretch for cashiers to accept a stamped signature from a disabled person (especially since I'm right there hovering over the proceedings). I did have someone at the DMV question it, but they got a supervisor who knew it was legal.

Looked it up for ya: According to Black's Law Dictionary, 5th edition, "A signature may be written by hand, printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another...And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient." So, your stamp, with or without signature, will imply that you have approved a document.

Once he's out of the hospital, he should go down to the bank and update his signature card. (Or have him tell the people at the rehab hospital, maybe they can arrange for a day pass to get it taken care of.) And he should keep that stamp under lock and key when not in use.
posted by Soliloquy at 1:21 PM on April 13, 2010

Response by poster: thanks everyone, again, for all your help and suggestions
posted by leticia at 3:10 PM on April 13, 2010

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