How is incompetency determined and how is it made a legal point?

4 answers | Last updated: Feb 06, 2018
A fellow caregiver asked...

My grandfather and his wife are moving into a retirement home. Her family is saying that my grandfather is incompetent to handle any financial decisions. She has power of attorney and my father has power of attorney if she were to pass first. They said a doctor said my grandfather is incompetent. We knew nothing of this doctor's visit. I am wondering what is considered incompetent and should there be papers or something legal stating he is incompetent? He is in the early stages of Alzheimer's. When we are talking to him he just can't remember the names of certain items while talking. He knows everyone. I am just concerned they are leaving him out of major financial decisions.

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

It sounds as if your bottom line concern is whether there is a legally valid power of attorney for finances in place—and when it might take effect.

There are two types of durable power of attorney for finances—and that is what determines when they take effect. You should be able to tell which type your grandfather has by looking closely at the language that specifies when it takes effect.

The first type, which is more rare, takes effect immediately when it is signed. It is usually used when a person needs some help with mechanics of finances, such as balancing a checkbook or paying the bills on time. Many people with various forms of dementia, for example, are able to handle many aspects of their finances, but may need some help with more complicated tasks, such as computing state and federal taxes.

The second type takes effect only after a person is considered legally incapacitated, which requires that one or two doctors declare in writing that a person is mentally incompetent to handle his or her own finances—signaling that its time for the agent named earlier in the document to step in and help out.

If the second type of power of attorney for finances exists here, it would not be sufficient for a doctor to state that your grandfather is incompetent; he or she would have to commit that opinion to writing.

If you remain concerned that your grandfather is being shut out of decisions he can make, consider contacting the family ombudsperson or counselor at the retirement home. Most facilities have such people on staff, who are well-versed in the intricacies of legal documents—and the family dynamics that sometimes get in the way of having them work properly.

Community Answers

Kimmykatt answered...

what kind of power of attorney should i get into,? i do everything for mom , even make financial decisions ect... there are a few things that require power of attorney like her property, finances , every aspect of her life , but i noticed a few different POA's which would you recommend...

Paz2u answered...

The question was not answered as written. Competency should be accessed by someone qualified to access all area's that determine if one is competent. I think this one very frustrating area in this already frustrating disease. All literature says how important to get an early diagnosis so things can be put in order. All areas of competency should be looked at to determine if a person is competent to make their own decisions and should be done with care and consideration. Taking a persons rights away is one that should not be done lightly but at the same time extreme caution leaving the person at risk is just as serious. Can this person manage their medication, finances, physical needs and memory issues. We had such a hard time getting help in this area. I think across the broad proticols should be used to determine this so everyone is on the same page.

Katfletch answered...

I understand and feel deeply about your concern. My father (since passed)'s trust is being challenged by my brother who is trying to argue my dad was incompetent when he signed it. My dad was diagnosed with mild-to-moderate Alzheimer's (a diagnosis I now question). My dad's short-term memory was not good but his long-term memory was very good. Regardless, it was obvious to those who knew him well he knew what was what.

My advice to you is get at least one neurologist to diagnose his level of competency. They are the ONLY doctors who can diagnose any form of dementia. A regular doctor, a social worker, or a nurse are NOT qualified. Also know that one piece of "evidence" is NOT enough for an accurate diagnosis. There are many assessment tests out there and they may be administered by anyone, including you. For example, there is the MoCA, SLUMS, and FAST tests (all available on the internet). You will see many of the so-called "tests" require a pretty good short-term memory ability.

For an accurate diagnoses, a multitude of types of evidence must be considered by a specialist (a neurologist) to determine competency. My dad consistently scored 15/30 (26 and higher is considered normal and competent) for two years and although my brother's lawyer is trying to argue my dad was incompetent because of such a low score, dad's neurologist completed a declaration of competency. Why? Because all of the evidence taken together (MRI, conversations with him, a specialized electronic brain scan, assessments scores, etc.) all proved to the neurologist that Dad had the capacity to make his own decisions.

It is your responsibility to protect your loved ones and one of the best ways to do that is to educate yourself. Knowledge is power and if you have that power, you don't need to take guff from anyone.