Welcome to Aging Insight. I'm Lisa Shoalmire, and I'm here today with my partner and co-host, John Ross. John and I are Elder Law attorneys, and that means that we bring together the areas of law that most impact seniors, the families that care for these seniors, as well as folks who may have some disabilities that we need to look out for down the road. So John, welcome back to another edition of Aging Insight. And the last few episodes of our program, we've been talking about the type of legal documents such as wills, beneficiary designations, very important documents that have very serious legal consequences. And we've been talking about you doing those documents, but you know what John? I wanted to dial it back today and talk about what faculties and capacities that you need to have in order to legally make these types of decisions.
I will tell you that one of the biggest things that I see on a routine basis, is I have somebody come to the office, and they say, "I need to get a power of attorney for mom, or dad, or wife, or husband," or whoever. And I'll say, "Okay. Well, I think the general durable power of attorney, the medical power of attorney... " Two of the most important documents a person will ever sign. So, I'm all for it. That's a great idea, we definitely need to get those. But my next question is going to be, "Is that person competent to sign it?" And that can mean the whole deal right there.
Well, and it's funny because sometimes we'll have folks call up and say, "I've been told I need to get a power of attorney for my spouse, or my parent." And maybe a nurse, or a social worker, or a home health, or a hospice worker passed that advice along, and when we ask the question, "Well, is the person capable and competent enough to sign the document?" Sometimes we're even told, "Oh, mom hasn't regained consciousness from her stroke."
But yet, they've been told to go get a power of attorney. While we've already discussed powers of attorney to some extent on one program, and I'm sure we'll revisit that topic, I wanted to talk today about what type of capacity... What do we mean when we ask, "Is the person competent to sign?"
Right. And here's probably the trickiest part of all of this, is determining the difference between legal capacity, legal ability to sign a document, versus the clinical side, the medical side. Because medically, there's a lot of gray area. A person might medically be competent to do some things and incompetent to do the other. For example, they might be... They might not have enough ability mentally to manage their own checkbook, but they might still have enough mental competency to, for example, decide who they want to vote and be the next president. So they might could still vote, but maybe they just don't have enough... So, medically speaking, we've got this broad range. Legally speaking, we have a bright line. Legally, you are either competent or a court has declared you incompetent.
Well that's right. So, essentially, under Texas and Arkansas law, from the time you reach 18 years of age until you take your last breath, you are considered a legally competent adult. Such that you could enter into contracts, you can sign a will, you can perform any act that any other legally competent adult could perform. The problem is, from a medical standpoint, a person may experience mental illness, a person may experience a physical illness or a cognitive dysfunction, or an accident that truly leaves their actual competency in question. But legal competency is always there unless a court makes a finding that that individual is no longer legally competent.
And I think the best example of this often times is, we'll have folks that will come in and they'll say, "My mom," for example, "is over at the nursing home. And she," the mother, "She would like to leave. And so she has told the staff at the nursing home that she's leaving and the nursing home is telling us that they can't stop her from leaving." And inevitably, when I'm having this conversation with that child, the child will say something like, "But I have power of attorney over my mother."
Right. I always like when they use that. What is that? A preposition "over my mother." And legally, that's just not an accurate description of that authority.
Right. A power of attorney essentially gives you the ability to do things for somebody, but it doesn't take away their rights. And even if... Often times, people have a hard time with this because they say, "Look, mom has Alzheimer's. She doesn't know what she's doing. She's making poor decisions, so why does the nursing home have to follow what she says?" And that's because, going back, legally, she is either competent or a court has declared her incompetent, and just because a person has a power of attorney, that has not legally removed those rights.
And well, that's right. And just because a person makes poor decisions... For instance, I bet many of our viewers could certainly think back to a time that maybe one of their own adult children made a poor decision but yet, we're not questioning their legal competency. We might be questioning their judgment, but somehow, a lot of times when we start talking about seniors and the decisions that seniors make, sometimes, we get to a point where we generalize and think if a senior is making poor decisions due to age and dementia, that we immediately jump to they're legally incompetent, and that's not the case.
Right. So, we're gonna take a quick break and when we come back, we're gonna keep talking about competency.
Welcome back to Aging Insight everybody. I'm John Ross, here with Lisa Shoalmire. And today, we've been talking about competency and specifically the, how competency relates to things like powers of attorney or signing a will. And our first point was that, a person from a legal standpoint is either competent or they are incompetent. And in many cases, a person may medically be incompetent, but the presumption from a legal standpoint is that they are still legally competent unless a judge has taken those rights away. And when you talk about legal competency, a lot of times what people don't realize is that just because you're not making good decisions or you're not making the decisions that other people might like you to make, even if you're already suffering from other problems, that does not necessarily make you incompetent. So Lisa, you've probably had the same thing where somebody has said, "When mom made out that will or that trust or that power of attorney, there's no way that thing's valid because she had Alzheimer's."
Right. That is something we get very frequently because we have someone in front of us or a family member that we're talking about, who has been given the clinical diagnosis for Alzheimer's or dementia, and that is a medical diagnosis but that diagnosis, in and of itself, does not automatically create a legal incompetency. And of course, Alzheimer's and dementia and those type conditions, there's a varying degree of how those dementias are affecting that person. So, I don't think anybody questions that someone who is just often recently been diagnosed, still very much knows about who their family members are and what property they own. They clearly have competency incapacity but we have a lot of folks who may be, maybe that diagnosis has propelled that person in to go ahead and come in and make some estate planning decisions. And sometimes not everybody's happy with that and the first thing we hear is "Oh, well dad signed that will and he'd been diagnosed with Alzheimer's." And the diagnoses itself does not create incompetency.
A lot of times I'll use the example and I'll say "Well, let's say that, Lisa, I was going to appoint you as my power of attorney, and the reason I wanna appoint you as my power of attorney is because I've got a law firm and I've got a house and I've got a car and I've got money in the bank, and I know all of these things, and I've got kids and I've got parents, and I know who all of them are. And I know also with 100% certainty, that this weekend the aliens are gonna come take me off to Mars. And while I'm gone... "
[chuckle] Right. "And while I'm gone, I wanna make sure you can handle business for me. And I trust you, I know you, and so I'm gonna appoint you as my medical power of attorney, so that while I'm gone at Mars you can handle my business." Now, clearly the aliens are not gonna be coming and getting me. I'm under some delusion that they are, but the question is, is the power of attorney valid? And I'd say the answer is probably 'yes'. It's not the reason that I want to get that power of attorney that's important, it's those other things. I trusted you to be the person to do it. I knew who my family was. I knew the nature of my estate and my assets and who my natural bounty would be, my children, and with all of that knowledge, I wanted you to handle those affairs for me. The fact that I thought I was gonna go to Mars, really irrelevant.
Oftentimes, especially with older adults, we see dementia as one of the big issues that relates to competency. Well, so Lisa, I'll ask you a question real quick. What's the single number one cause of dementia? I didn't think you knew it. Surprisingly enough, it's a urinary tract infection. A urinary tract infection is the single number one reason for somebody to have dementia. And if they treat the urinary tract infection they no longer have dementia.
It's a temporary condition. And so, here's a situation where somebody could have dementia one day, be perfectly healthy the next day, get another urinary tract infection and have dementia the third day. But as long as they executed that document right there in the middle, during that moment of clarity, during that period of time where they understood the world around them, just because they had dementia before and just because they had dementia after is irrelevant. It only matters for that time, which is also why it's so difficult to show that somebody was incapable, incompetent at the time they signed something.
And we've had that come up before where we have a person in front of us who maybe is moderate stage with an Alzheimer's or dementia or an illness, recently been exposed to anesthesia. And family members are concerned, is that person confused or are they clear and capable of understanding the business they're engaged in. And a lot of times this is appropriate time to get documentation from a medical provider, or even perhaps video tape a signing of a document, asking questions on the video to ensure that anyone who views that video at a later point can see that that person did in fact understand their business well enough to execute a document. And the bottom line here is capacity to execute a will or a power of attorney is not necessarily the same capacity it would take to build a rocket from scratch or frankly, even understand a cellphone data plan; But it's these very simple things that we need a person to be able to understand, contemplate and make decision about based on knowing who their property...
What their property is, who their family members are, and what actions they're taking. So, when we come back from the break, we'll continue talk about the impact of a change from legally competent to perhaps, incompetent and how that can affect a person's property planning and estate.
Welcome back to Aging Insight everyone. I'm John Ross, this is Lisa Shoalmire and we're continuing our conversation on competency, legal competency versus medical competency and how this impacts things like powers of attorney, and wills, and trusts, and these sort of things. And so far, hopefully, what you're getting is that just because a person has difficulties, that just because they may have Alzheimer's or Parkinson's or maybe they have some health problems that they have to take some strong medications, that in and of itself does not mean that they are legally unable to sign a power of attorney or a medical power of attorney or even a will. Now then, if that capacity has gone so far that they don't know who their family is and who their... The nature of their estate, then maybe so. But just they have these diseases, that's not in and of itself enough.
And not only that, just because they have these diseases, doesn't mean you get to boss them around. You don't get to substitute your judgement for somebody else's judgement. Probably you have at one point in time a teenager in your life and that teenager wanted to do what they thought they wanted to do. And as the parent, you get to tell that teenager what to do, but when that teenager becomes an adult, you don't get to tell 'em what to do any longer. And a person that's age 18 or older gets to decide whatever they want, even if that decision is not necessarily what you think is in their best interests.
Well, and I guess John that brings us back to how we opened our program, talking about the situation where maybe you're caring for a senior or you're caring for your spouse and they've been in a skilled nursing facility or a hospital, receiving medical treatment, and the patient is bound and determined to leave the facility, perhaps even against medical advice. And you as that person's caregiver, feel that the individual is not making good decisions, maybe you question their capacity to make good decisions, maybe you know for sure that that person cannot go home and manage themselves whether it's cook a meal, manage their medication, make sure they take a bath regularly, and you feel that that person would be a danger to themselves or otherwise can't... Incompetent to live alone.
We get back to that point where that medical facility or nursing home establishment at some point, they have to release a person, if that person is demanding to be released and is not otherwise under a legal guardianship. So, that's where we get to when we truly, in order to change the presumption of an individual having legal capacity, we have to go through a procedure called a guardianship procedure, which brings the court into your business and gives a judge an opportunity to review the medical evidence perhaps and to evaluate circumstances and to make a legal determination about that individual's capacity.
That's right. And guardianships are very difficult, there's no doubt about it. They are time-consuming and they are typically quite expensive. Not just from the standpoint of the attorneys and the legal fees, but also because you often have medical doctors that have to get involved and write opinions. And you have other people who are involved in this, people who are appointed by the court to advise the court about the person. Attorneys who represent not just you, but also the attorney ad litem, the person who represents that parent or that other person. And so it's a very extensive process, but don't we really want it to be an extensive process? Because essentially, what we're talking about is taking away somebody's rights, somebody's ability to make decisions for themselves, and we need to do that very carefully. Guardianship is a last resort. And so, part of the reason that we talk about getting things like powers of attorney and medical powers of attorney, and HIPPA releases, and having them be very good comprehensive documents is to avoid the necessity of that guardianship, if it can be avoided.
Well, that's right, and if you do have that family member or spouse, who you believe is medically incompetent and they continue to do things, such as... I had a circumstance one time where I had a lady who just kept continuing to write hot checks. She appeared quite capable and competent, but yet, her dementia issues were such that she just thought she had a million dollars in the bank and in order to prevent accumulation of charges on the account, her son did ultimately have to seek a guardianship. So, it is a last resort and it is a way to make a determination about someone's legal capacity.
That's right. So, if you've gotten anything from what we've talked about today, hopefully you've got that capacity is a... Legal capacity or legal competency is a big issue. You need to address these things before it's too late. Once you're incompetent, we can't go back and put things right. So get things in place and don't just assume because somebody has some problems that they're incapable. We're all still humans and we all should be treated humanely. If you like the show and you can't get enough, feel free to also listen in to our radio show, which is every Saturday at noon on 107.1. You could also tune into Facebook, at facebook.com/aginginsight. You could even follow me on Twitter at TXKelderLaw.
Well great, John. The bottom line today is you are presumed to be a legally capable and competent person, so exercise that wisely and the way to improve on that is to come back and see us next week and learn more about issues that effect aging.
In this issue, John Ross and Lisa Shoalmire discuss what faculties and capacities you need to have in order to legally make some big decisions as you age.