Signing as Attorney in Fact

Question:
My client is not physically able to sign his name due to a stroke suffered 2 years ago. Can his wife sign the Trust documents for him?

Answer:
If Husband executed a Durable Power of Attorney instrument naming his Wife as his immediate Attorney in Fact, then she can sign legal documents as his Attorney in Fact. In this case, if he is mentally competent, but physically unable to sign, then Wife can sign the Trust documents for him, except for a new Durable Power, the Will, and the Advance Health Care. A new DPA document could not be provided. The Will and Health Care document can be witnessed by 2 individuals who "witness" Husband make a "mark" for a signature.

Keep in mind – if Husband is not mentally competent, then his agent would only be able to create a Trust on his behalf if his current Durable Power authorizes his agent to "create" a Trust.Most DPA’s grant power to amend a trust or to transfer property, but few actually use the required term "create."