Legal Competency: When Is It Too Late to Create a Power of Attorney?

As an elder law attorney, I frequently advise adult children who suddenly realize that they must step in to help their aging parents. Perhaps mom is not making sound decisions regarding her medical care, or Dad is showing signs of early dementia.


Unfortunately, many seniors are reluctant to plan for this possibility or even discuss it with their close family members. When families delay talking about these matters, the results can be stressful and costly. Failing to preplan can have serious consequences both while an elder is still alive and after they have died. Unfortunately, once a family realizes they urgently need legal documents to help an aging loved one, it’s often too late.


Mental Capacity


Mental capacity is a complex concept that is not necessarily black and white, especially when dementia is a factor. A senior with some form of cognitive decline may experience moments of lucidity. With POA documents, the individual (known as the principal) must be capable of understanding and appreciating the extent and effect of the document just as if they were signing a contract. This is known as contractual capacity. (Keep in mind that the exact competency requirements for POA documents may vary from state to state.)


If a lawyer determines that a client lacks the capacity to appoint a power of attorney for health care and/or finances, their adult child or another family member will need to seek legal guardianship and/or conservatorship to manage their affairs. During competency proceedings, the court will formally determine the person’s mental capacity (or incapacity) in question and recommend any next steps if necessary. 


Guardianship/Conservatorship


When an elder loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness, or other serious health issues. If the person you are caring for cannot make rational, clear-headed decisions about their health care, finances, or other aspects of life, it is too late for POA’s and seeking legal guardianship may be your only option to ensure their safety and quality of life.


What Is It?

Guardianship for the elderly is where an individual has not appointed a power of attorney for health care or finances and is deemed incapacitated due to advancing age, an illness, or a disability.


To act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the ward declared incompetent based on expert findings. If the person is ruled incompetent, then the court transfers the responsibility for managing finances, living arrangements, medical decisions, or any combination of these tasks to the court-appointed guardian.


This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged, and costly. 


Get Help Before It Is Too Late


The best advice is not to wait until it may be too late to engage in proper legal planning. If possible, make a point of having these conversations with family members while they are still of sound mind and able to comprehend exactly what they are signing and why. These discussions can be difficult, but we can help with this process.

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