How Is Mental Capacity Determined for Power of Attorney?
When a person is diagnosed with any cognitive deficit the concern of who will act for them if a time comes that they no longer can takes on significant importance. The capacity required to execute a Power of Attorney in New York is defined in the General Obligations Law as the ability to comprehend the act of executing and granting a Power of Attorney. In other words, the person granting the Power of Attorney must understand the document they are signing as well as the provisions contained in the document. A diagnosis of dementia does not necessarily result in an inability to execute legal documents. Oftentimes, persons with mild symptoms still possess the capacity required to execute legal documents.
The determination of capacity should be assessed on a case by case basis, taking into account the individual’s familiarity with their family members and financial situation. Specifically, it is important that the Principal understand the powers that they are entrusting in another individual. It is also important that the Principal exhibit a clear understanding and willingness to grant the agent or agents named in the document this power. Assuming that you are able to establish this, a Power of Attorney document can be executed.