The article, "Legal Issues for Concerned Family and Friends of a Possibly Incapacitated Individual," advises that functional capacity is contextual. The challenges an individual faces in daily living and how well they are being addressed is sometimes hard to pin down. The legal terminology is frequently vague and inconsistent. Terms such as "incompetent," "unsound mind," and "incapacity" are used interchangeably.
State statutes typically define an "incapacitated person" as someone who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health or to manage the individual's own financial affairs.
The courts will often require expert testimony and reports as to the individual's physical or mental state before rendering a judgment. Many states use a required standardized "Certificate of Medical Examination" form to be submitted to a court, which has the specific statutory definition of incapacity. It will often have boxes for the physician to check and a space for his or her comments.
A progressive and gradual onset of dementia may be hard for both the individual and family members to recognize and appropriately address. As such, there are a variety of tasks that have significant personal and legal implications. Consider if the person can consistently and appropriately undertake the following tasks, although this isn't a complete list and they aren't listed in any particular order:
- Administer her or his own medications;
- Engage in daily activities like personal hygiene, bathing and dressing;
- Attend to shopping, food preparation, self-feeding and housekeeping;
- Safely drive a motor vehicle;
- Manage their finances and pay household expenses;
- Make appropriate decisions concerning marriage or intimate relationships;
- Keep his or her home clean;
- Collect and respond to mail or other communications;
- Recognize and avoid common scams and frauds; and
- Understand the need for and consent to medical and dental treatment.
There may be assistive devices, accommodations and part-time caregivers that might be less restrictive alternatives than legal guardianship and institutional living. Legally, an individual is presumed to be sane and have legal capacity. As a result, the family may have a hard time stepping in when an individual is stubbornly insistent on keeping the status quo in spite of signs that some changes are needed.
You will need a medical power of attorney and healthcare directives to physicians and medical staff. Make sure, well in advance, that you and your loved ones have created durable powers of attorney specifically tailored to the needs of the elderly so that a trusted person may act when one becomes incapacitated. Do not be deceived, all powers of attorney are not created equal. We review a lot of them for potential clients and the great majority do not contain provisions allowing application for Medicaid or other long term care strategies. Without these specific provisions the only alternative for a loved one with Alzheimer's or other forms of dementia is the very expensive and lengthy guardianship process. Finally, create an up-to-date will and talk to your estate planning and elder law attorney about appropriate estate planning.
For more information on this and other elder law and estate planning subjects, including our Super Charged Power of Attorneytm contact Idaho Estate Planning and schedule a consultation. Remember, good planning is no accident.