Estate Planning and the Autopen Debate

Takeaways

• The controversy surrounding President Joe Biden’s use of an autopen highlights such critical estate planning issues as consent and mental capacity, which are also central to challenging wills and trusts.
• Just as a president’s signature signifies intent and understanding, the validity of a will or trust hinges on the signer’s mental capacity and freedom from undue influence, making early estate planning and careful adherence to legal standards crucial.

Political controversies are nothing new in Washington, D.C. But it’s rare that a controversy touches on estate planning the way that President Joe Biden’s reported use of the autopen has sparked questions about signatures, consent, and capacity — issues that hit close to home for millions of Americans as the population ages and rates of dementia and Alzheimer’s rise.

Some of the same questions raised by the autopen debate — Did the person know what they were signing? Did they understand the consequences? Was their consent full and uncoerced? — are the same sort of questions probate courts ask when a will or trust is challenged.

While the debate continues about the constitutional implications of Biden’s autopen, it also serves as a powerful and practical reminder about the meaning — and authenticity — of a signature in an estate plan.

The Autopen: From Presidential Tool to Political Lightning Rod

An autopen is a device that reproduces a person’s signature. Patented in the U.S. in 1803, it is often used for high-volume, low-stakes signing (e.g., ceremonial letters, photographs, and routine correspondences like holiday cards) by politicians buried under paperwork or unavailable to sign something in person.

Thomas Jefferson used an early version of the autopen to create duplicates of his letters as he wrote them. The polygraph device held two pens connected by a linkage, allowing one to trace and copy the other.

Autopens later evolved to use a template that was made by carving a channel into plastic, like a mold of the signature. Today, autopen machines are digital.

Starting with Jefferson, U.S. presidents have used the autopen to various degrees in what is considered a White House “open secret” that still sparks occasional controversy.

President Barack Obama famously used one to sign a bill into law while on vacation, raising a brief constitutional dustup that was ultimately settled by a prior legal opinion. That legal precedent stated that an autopen signature is legally valid as long as it is personally and knowingly authorized by the president.

Although the constitutional right of a president to sign a bill with the autopen has never been challenged or tested in court, the key point is that the signature itself is not the legal act, but rather the president’s authorization, regardless of the signing method.

And it’s here that the estate planning parallel begins, particularly at a time when electronic signatures are now commonplace and legal in every state — as long as the signer shows clear intent to sign electronically, which is the same standard as a handwritten signature.

That could mean they type their name, draw a signature with a mouse, or click “Accept.” In Canada, a court has ruled that a “thumbs-up” emoji sent by mobile phone is a valid electronic signature.

The Heightened Autopen Debate Under Biden

Allegations that the outgoing Biden administration used the autopen to sign executive orders and pardons without the president’s knowledge have added a new wrinkle to the long-running autopen controversy. What makes this different is the context: President Biden’s advanced age and persistent speculation about his cognitive health.

President Trump and other critics argue that, due to a lack of transparency about the president’s direct involvement, the public can’t be sure whether he reviewed or understood what was signed in his name and, if he didn’t, whether the signed documents are valid.

The major concerns that have emerged relate to:

• Consent. Did Biden personally and knowingly approve each document, or did aides act under a blanket authorization?
• Capacity. Did he have the mental ability to fully comprehend the content and consequences of the documents?
• Precedent. What might this imply for future administrations facing genuine questions about a president’s mental fitness?

In this context, a presidential signature is no longer just a ceremonial flourish. It demonstrates their intent, understanding, and free will. These concerns also lie at the heart of estate planning disputes, where similar legal questions — and standards — come into play.

Connecting the White House to Your Will

Depending on what side of the political aisle you sit on, the Biden autopen story might be either a low political blow or a legitimate topic of debate.

Before you dismiss it as pure partisan politics, however, consider our aging population and the families that go through their own version of the controversy, albeit privately and regarding personal matters, not publicly and on matters of national importance.

Americans are living longer — and suffering more age-related health problems as a result. Biden was 82 years old when he left office, making him the oldest president ever when the autopen controversy arose.

Rates of cognitive impairment and dementia, including Alzheimer’s, increase sharply with age. For instance, one study found that cognitive impairment prevalence increased from 19.2 percent for ages 65 to 74 years to 38 percent for ages 85+ years. Meanwhile, the risk of developing Alzheimer’s disease doubles every five years after the age of 65. After age 85, Alzheimer’s risk reaches nearly one-third.

Although experts say it’s best not to “diagnose from a distance,” a 2025 book claims Biden’s inner circle tried to hide his mental decline. And if someone is dealing with a family member in decline, that distance might be close enough to make legitimate arguments about their cognitive fitness and legal capacity.

A president's signature on a bill may seem a world away from your personal estate plan, but the underlying legal principles are the same.

When a will, trust, or other estate planning document is challenged in court, the central question is often whether the person who signed it had the necessary mental capacity and was free from outside influence.

• Testamentary capacity is the standard for making or changing a will. It’s intentionally low to preserve a person’s right to decide who inherits their property. At the moment of signing, the person must be able to:
  • Understand they are signing a legal document that distributes their property after death
  • Have a general awareness of what they own
  • Recognize their “natural heirs” (spouse, children, or close family)
  • Form a rational plan for distributing assets

A diagnosis of dementia or Alzheimer’s does not automatically invalidate a will. What matters is the person’s mental state at the exact moment of signing. Wills signed during a “lucid interval” can still be valid.

• Contractual capacity is a higher legal standard, required for more complex documents like powers of attorney or health care directives. At the time of signing, the person must be able to:
  • Understand the document’s contents
  • Grasp the long-term consequences of signing, such as granting someone authority over their finances or medical care
  • Appreciate how the agreement will affect their future rights and obligations

Someone may lack contractual capacity while still meeting the lower testamentary standard for a will.

Another common challenge to a signature’s validity is undue influence. This occurs when one person exerts pressure or coercion on another, to the point that the signer’s free will is overcome and the resulting document no longer reflects their true wishes. In court, proving undue influence often requires showing that the signer was vulnerable and that the “influencer” was in a position of authority and actively involved in procuring the document.

Challenges can come from disinherited heirs, estranged relatives, or creditors who claim the signer lacked capacity or was unduly influenced. Judges look closely at medical records, witness testimony, and the circumstances of the signing. Once a document is invalidated, the results can be permanent.

The following scenarios mirror the autopen debate and how consent and capacity could come under scrutiny in estate planning:

• Late-Life Will Changes. A parent revises their will (or trust) shortly before dementia diagnosis, raising questions about whether they understood the new provisions or were influenced by others.
• Power of Attorney (POA) Concerns. A POA is executed when the signor’s cognitive clarity is uncertain. If later contested, courts must assess whether the signer truly understood the scope of authority granted.
• Digitally Signed Documents. A trust or deed is signed electronically when the signer wasn’t tech-savvy or was fatigued — raising doubts about informed consent.
• Absent or Biased Witnesses. A document is witnessed only by a beneficiary or caregiver, calling the signer’s independence into question.
• Uncharacteristic Signatures. A signature appears mechanically perfect or noticeably different from prior versions, sparking suspicions about forgery or assistance.
• Health Care Directives Signed under Duress. A directive signed in a hospital or care setting when the patient is medicated, pressured, or unclear is rife for challenge.

Capacity, Consent, and the Fine Print That Can Undo Your Plan

In the White House, a disputed autopen signature could trigger legal challenges, public mistrust, or even constitutional crises.

In your personal life, the stakes are also high. When someone signs a will, trust, or POA during cognitive decline, disinherited heirs or banks may cry foul. Lengthy court battles, frozen assets, and fractured families may ensue.

Whether in the Oval Office or your own living room, a signature is a promise of intent, authority, and understanding. And it’s only as strong as the consent and capacity behind it.

To avoid the chaos of a challenged signature, plan your estate early, before any health concerns arise. Other proactive steps include recording video at signing, complying with state-specific e-signature laws, getting a physician’s letter that attests to mental clarity if there is any doubt about it, and using neutral witnesses.