Justin, My dad is in the hospital and not doing well. We’ve been advised that we should make sure he has his affairs in order. We’re worried because he doesn’t even have a will. Can he even sign a will while he’s in the hospital? – Virginia
Virginia, I’m sorry to hear that your father is not doing well. You may not realize it, but you brought up several different confusing issues in your question. First, your specific question was whether your father could sign a will while he’s in the hospital. The answer to that question is the typical lawyer answer – it depends. Being in the hospital does not, in and of itself, prevent someone from signing a will. That may cause some logistical issues because a will must be witnessed by two disinterested individuals, and it’s better if the witness signatures are also notarized. That can be a hassle in a hospital room, but it can be done.
The real question is whether your father has capacity to sign legal documents – would he understand what he’s signing? That’s a harder question to answer without a lot more details. That varies from case to case.
But even if your father has capacity to sign a will, and even if you are able to get past the logistical hurdles of having it properly executed in a hospital room, you should know that having your father sign a will does not solve the family’s problems. Most people worry about “getting their affairs in order” because they want to stay out of probate court. A will cannot do that.
In fact, a last will and testament is actually a set of instructions for the probate court, not a tool to avoid probate court. You need to consider other last minute planning tools if probate avoidance is one of your priorities. And if your father doesn’t already have a power of attorney for healthcare matters and an advance directive for end of life care, those documents should be at the top of your list as well.
This is the type of work our attorneys do every week. Give us a call to set up a quick strategy session, or visit our website at ElrodFirm.com to read more about these topics.