Can a person with Alzheimer's sign a contract?

Question

José Manuel Alburquerque · Accepted Answer

A diagnosis of Alzheimer's does not in itself prevent a person from signing a contract. What matters is whether, on the day of signing, the person understands what they are signing and wants it. If they did not understand it, the court can be asked to set the contract aside, but whoever asks will have to prove it, because capacity is presumed. Today, in Catalonia, if the person has assistance (“asistencia”) as a support measure and signs without their assistant a contract for which the measure requires the assistant's involvement, the contract can be annulled within the following four years. To avoid problems, it is advisable to sign in the early stages of the illness, before a notary and with a medical report from that time. What matters is the day of signing Today the law does not deprive anyone of their capacity because they have an illness or a disability. What is decisive is whether, at the time of signing, the person understands what they are signing and what its consequences are. They must also make the decision freely. It is the same test that applies to wills. If they did not understand it, the court can be asked to set the contract aside. In principle, the protection is for the person who is ill, so the other party cannot rely on the illness to get out of the contract. Whoever challenges the contract will have to prove that on that day the person could not understand what they were signing, for example with medical reports from that time or with the evidence of those who were treating them. The time limit for doing so may be four years, so it is best not to wait. Today, if a judge appointed a guardian (“tutor”) or a curator (“curador”) for the person before September 2021 and the judgment has not been reviewed, that measure remains in force. It is advisable to check what it says before they sign anything. If an assistance measure is in place Today, in Catalonia, a guardian or a curator is no longer appointed for an adult. The support measure is assistance, under which a trusted person helps the person who needs it to make their own decisions, without deciding for them. It can be set up before a notary or by a court. Only in exceptional cases can the judge allow the assistant to act on the person's behalf in specific acts. If the person signs without their assistant a contract for which the measure requires the assistant's involvement, the contract can be annulled. The assistant, the person themselves and, if they die, their heirs can apply for this within four years of signing. The Catalan rules on support measures will change in 2027. If the other party took advantage of the person's situation to obtain an excessive benefit, the “Código Civil de Cataluña”, the Catalan Civil Code, also allows the contract to be rescinded for unfair advantage, again within four years of signing. Under the Spanish Civil Code (“Código civil”), which applies in most of the rest of Spain, a contract signed without the support required by the measure can also be annulled within four years of signing. How to avoid problems Sign as soon as possible, in the early stages of the illness, when there is no doubt about capacity. Sign important contracts before a notary. The notary checks that the person understands what they are signing and records this. Ask the doctor for a report on the person's condition at that time and keep it. If the person still understands what they are doing, grant a lasting power of attorney (“poder preventivo”) before a notary as soon as possible, so that someone they trust can act for them when needed. If the person can no longer understand what they are signing, they cannot sign on their own. Someone with authority to do so will have to act for them, such as an attorney under a valid lasting power of attorney or an assistant whom the judge has empowered to represent them.