How is a Successor Agent or Executor Named?
If there are no successors named in the documents, then the answer will depend on whether the mother has mental capacity to change the will or power of attorney. The principal must have mental capacity to make or revoke the power of attorney at the time of signing. Legal capacity generally means to have an understanding of the nature of the action and its consequences. When a person is incapacitated, she is unable to sign a will, codicil to a will, power of attorney, or a revocation of the same. We suggest discussing her mental capacity to sign a contract with her physician.
A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will. A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery.