Losing Your Marbles 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. The first and best option is to manage a petition is filed with the court stating that person’s affairs under a power of why the individual needs a guardian and attorney executed by the loved one, while conservator to be appointed. The court they were competent. Of course, once will then appoint a lawyer for the allegedly a person’s mental ability has begun to incapacitated individual to protect their decline, it may be too late to sign a power rights, as well as a court representative and a physician to Attend Free Workshop Attend Free Workshop examine the individual and Estate Planning and Asset Protection Workshop Estate Planning and Asset Protection Workshop their living Wednesday, July 22: Hosted by Red Oak Legal, PC: 1:30-3:30 pm Wednesday, July 22: Hosted by Red Oak Legal, PC: 1:30-3:30 pm conditions, at the Archibald Senior Center (MACOA) in Montgomery. This at 322 Catoma Street downtown Montgomery. This educational and to submit a report to the educational workshop presented by local attorney Raley L. Wiggins workshop presented by local attorney Raley L. Wiggins covers court. Finally, covers wills, trusts, powers of attorney, advance directives, living wills, trusts, powers of attorney, advance directives, living the court will wills, probate administration, protecting assets from creditors, wills, probate administration, protecting assets from creditors, conduct a bankruptcy, divorce and remarriage, nursing homes, long-term care bankruptcy, divorce and remarriage, nursing homes, long-term hearing, and and Medicaid qualification. Registration is required. care and Medicaid qualification. Registration is required. Call either grant or deny the Call 334-625-6774 today to reserve your seat or register online at 334-625-6774 today to reserve your seat or register online at petition. www.redoaklegalpc.com. www.redoaklegalpc.com.

of attorney because they lack sufficient ability to understand and comprehend the document. However, if they are still able to execute it, a well-drafted power of attorney will permit the agent (the person granted power under the power of attorney) to manage the business and financial affairs of the principal (the person who executed the document). Similarly, a well-drafted healthcare power of attorney or advance directive will allow an agent to make healthcare and other decisions, even if the principal does not have the capacity to do so themselves.

But, what if the individual does not have a power of attorney or advance directive? In that case, the only option may be to ask the local probate court to appoint a guardian and conservator. A guardian (similar to the guardian of a minor child) is tasked with looking after the individual’s well-being, consenting to medical care, and determining where they live, among other things. A conservator is responsible for handling the individual’s money and property.

Asking a court to appoint a guardian and conservator takes time, and can be expensive. To initiate the proceeding, Once appointed, the guardian and conservator are responsible for looking after the individual, and will generally be required to report to the court from time to time.

In many instances, the appointment of a guardian and conservator is appropriate. That said, it is a proceeding which can often be avoided by the execution of two relatively simple estate planning documents: a durable power of attorney, and an advance directive.

If someone you love is beginning to experience some decline in the mental sharpness, there may still be time to have these simple documents created while they have sufficient mind and memory to do so. Taking care of this now can avoid a costly court proceeding later. While you’re at it, what about your own planning—do you have these simple documents?

As we often say in our business, there’s no time like the present. So, what are you waiting for?

Raley L. Wiggins Raley L. Wiggins Attorney at Law, Red Oak Legal, PC Attorney at Law, Red Oak Legal, PC 334-239-3625 | 334-239-3625 | info@redoaklegalpc.com info@redoaklegalpc.com 445 Dexter Avenue, ste 9000, Mont, AL 36104 322 Catoma Street, Montgomery, AL 36104 www.redoaklegalpc.com www.redoaklegalpc.com

This & tHAT i

Hormones May Explain Greater Prevalence of Alzheimer's in Women

Women have more Alzheimer's disease-related changes in the brain than men, and this may be linked to hormonal disruptions at menopause, researchers say. "About two-thirds of people living with Alzheimer's are women, and the general thinking has been it's because women tend to live longer," said study author Lisa Mosconi of Weill Cornell Medicine in New York

City. "Our findings suggest that hormonal factors may predict who will have changes in the brain. Our results show changes in brain imaging features, or biomarkers in the brain, suggesting menopausal status may be the best predictor of Alzheimer's-related brain changes in women," Mosconi said. Participants had brain scans to determine levels of Alzheimer's-associated beta-amyloid plaques; volumes of gray and white matter; and the rate at which the brain metabolized glucose, an indication of brain activity. "Our findings suggest that middle-aged women may be more at risk for the disease, perhaps because of lower levels of the hormone estrogen during and after menopause," Mosconi said in a journal news release.

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