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Our newest Senior Tip:

Determining Capacity

It’s better to sign powers of attorney before you have a crises.

Here is a story frequently recounted to me by families: Mom and dad have lived a full life together, but recently things have started to change. Dad has been diagnosed in the early stages of Dementia and mom has developed some physical limitations. Together they manage, but alone they are not able to care for themselves. This recently became apparent when mom got pneumonia and went to the hospital, and dad could not remain at home alone.

Wondering what to do to help their parents, adult children often come to me for advice on how to prepare their parents for the future. I always ask if their parents have financial and healthcare powers of attorney, knowing how important it is for them to have someone who can step in and help them if they need. This is even more important if they are considering facility placement or a Medicaid application.

Often, learning that they do not have powers of attorney, I ask if their parents are competent, or if they have the capacity to understand and sign documents. This question opens a can of worms, because the children don’t know the answer, and I am forced into making a capacity determination—something I try to avoid when possible. If only the parents had planned for this possibility and prepared the documents when they were competent, thinking clearly and knew what they wanted. Needless to say, a person should make these decisions when they are at their best, not at their worst.

As a lawyer, sometimes I must assess the capacity of the person needing to sign documents. Capacity is determined in the areas of their cognitive, emotional and behavioral abilities. Possible signs of cognitive incapacity include short term memory loss, communication problems, comprehension problems, lacking the capacity to understand multiple alternatives, problems with mathematical calculations, and disorientation. Emotional signs of incapacity include significant emotional distress and emotional inappropriateness. And behavioral signs include delusions, hallucinations or poor grooming and hygiene. Knowing the person’s abilities and deficits in all these areas, rounds out the total picture. It is not easy to determine when someone has crossed the line and is incapacitated.

Unfortunately, it is in this crises stage that I see many of my clients, and I must make the determination if the person has the capacity and understanding to sign documents, which hands their right to make decisions over to someone else. This decision becomes increasingly difficult if the children of the parents have differing opinions about what is best. In that case, I must also make the determination if any of the children are exerting undue influence on the parent.

In conclusion, Seniors lives take many turns. Events sometimes change one’s ability to live life in the way that he or she had hoped for. It is better to prepare powers of attorney early when one is competent, and there will less chance that the decisions made will be challenged on the grounds of incapacity.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity.  If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

January 2018