Ask an Elder Law Attorney By: Raley L. Wiggins | Attorney at Law | Red Oak Legal, PC
Losing Your Marbles: Competency Issues for the Elderly In the eyes of the law, mental competency is a complex issue. Particularly among the elderly, it is unusual for someone to simply lose their ability to manage their own affairs overnight. It is much more common for one’s memory to slip gradually over time. But, when does memory loss cease being old-age “forgetfulness” and start becoming legal incompetence? As a lawyer, when I am asked whether an individual has legal mental capacity, my first question is always: “Capacity to do what?” To begin with, the law generally presumes that every adult has mental capacity, until proven otherwise. In addition, in the eyes of the law, the level of understanding and mental acuity needed to engage in a given transaction depends substantially on what the transaction is. At the high end of the spectrum is the capacity required to execute a binding contract. To execute a contract, one must have the ability to “understand and comprehend” their actions. A court will not find a contract to be void based upon the signer’s lack of mental capacity unless you can show that they had “no reasonable perception or understanding of the nature and terms of the contract.” At the opposite end of the spectrum is the capacity required to sign a last will and testament. This is a very low standard, which requires only that the person signing the will to be able to recall the property to be disposed of by the will, how it will be generally be divided, and the people they want to receive the property. So, a person may lack the legal mental capacity to sign a binding contract, but still have sufficient mind and memory to execute a valid last will and testament. Each case must be evaluated individually. But, what do you do if you suspect that a loved one is slipping to the point where they can no longer manage their own affairs? There are a couple of options.
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The first and best option is to manage that person’s affairs under a power of attorney executed by the loved one, while they were competent. Of course, once a person’s mental ability has begun to decline, it may be too late to sign a power
a petition is filed with the court stating why the individual needs a guardian and conservator to be appointed. The court will then appoint a lawyer for the allegedly incapacitated individual to protect their rights, as well as a court representative and a physician to examine the individual and Estate Planning and Asset Protection Workshop their living conditions, Wednesday, July 22: 22:Hosted Hostedby byRed RedOak OakLegal, Legal,PC: PC:1:30-3:30 1:30-3:30pm pm Wednesday, July and to submit at the 322Archibald Catoma Street Montgomery. This educational Seniordowntown Center (MACOA) in Montgomery. This a report to the workshop local attorney Raley L. Wiggins covers educationalpresented workshopby presented by local attorney Raley L. Wiggins court. Finally, wills, powerspowers of attorney, advance directives, livingliving coverstrusts, wills, trusts, of attorney, advance directives, the court will conduct a wills, probate probate administration, administration,protecting protectingassets assetsfrom fromcreditors, creditors, hearing, and bankruptcy, divorceand andremarriage, remarriage,nursing nursinghomes, homes,long-term long-term bankruptcy, divorce care either grant care and Medicaid qualification. Registration is required. Call and Medicaid qualification. Registration is required. or deny the 334-625-6774 today to reserve your seatseat or register online at at Call 334-625-6774 today to reserve your or register online petition. www.redoaklegalpc.com. www.redoaklegalpc.com. Once appointed, the guardian and conservator of attorney because they lack sufficient are responsible for looking after the ability to understand and comprehend the individual, and will generally be required to document. However, if they are still able to report to the court from time to time. execute it, a well-drafted power of attorney will permit the agent (the person granted In many instances, the appointment of a power under the power of attorney) to guardian and conservator is appropriate. manage the business and financial affairs That said, it is a proceeding which can of the principal (the person who executed often be avoided by the execution of the document). Similarly, a well-drafted two relatively simple estate planning healthcare power of attorney or advance documents: a durable power of attorney, directive will allow an agent to make and an advance directive. healthcare and other decisions, even if the principal does not have the capacity to do If someone you love is beginning to so themselves. experience some decline in the mental But, what if the individual does not have sharpness, there may still be time to have these simple documents created while they a power of attorney or advance directive? In that case, the only option may be to have sufficient mind and memory to do so. ask the local probate court to appoint a Taking care of this now can avoid a costly court proceeding later. While you’re at it, guardian and conservator. A guardian (similar to the guardian of a minor child) is what about your own planning—do you tasked with looking after the individual’s have these simple documents? well-being, consenting to medical care, As we often say in our business, there’s and determining where they live, among no time like the present. So, what are you other things. A conservator is responsible waiting for? for handling the individual’s money and property.
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Asking a court to appoint a guardian and conservator takes time, and can be expensive. To initiate the proceeding,
Raley L. Wiggins Attorney at Law, Red Oak Legal, PC 334-239-3625 | info@redoaklegalpc.com 322 Montgomery, 36104AL 36104 445Catoma DexterStreet, Avenue, ste 9000, AL Mont, www.redoaklegalpc.com
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