THE BLOG
12/22/2015 12:34 pm ET Updated Dec 22, 2016

Legal Issues for Concerned Family and Friends of a Possibly Incapacitated Individual

Sometimes holiday gatherings become a time for family decision making. What should or shall we do about the circumstances of an elderly relative or seemingly incapacitated relative? Is an intervention appropriate? This comment provides a brief and incomplete educational overview of legal incapacity. Always consult experienced medical, advocacy, and legal professionals in specific situations.

Realize that functional capacity is contextual. What challenges does the individual face in daily living and how well are they being addressed? Legal terminology is often vague and inconsistent with terms like "incompetent," "unsound mind," and "incapacity" being used interchangeably. A typical statutory definition of "incapacitated person" is one 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. Judges frequently require specific expert testimony and reports concerning physical, mental or psychiatric issues before acting. Many states have a required standardized "Certificate of Medical Examination" form to be submitted to a court. It contains the statutory definition of incapacity and consists of boxes for the physician to check and a space for comments. Judicial intervention takes away an individual's autonomy and freedom.

Frequently, incapacity may be intermittent and is a result of issues as, for example, medication interactions, depression, and untreated urinary tract infections. Consequently, as a preliminary matter, encourage the individual in question to consult with her or his physician. Are there changes or in-home accommodations that will allow the individual, with some assistance, to continue her or his current manner of living?

Mentally, the "executive function" (often identified with the brain's frontal lobe) consists, in broad overview, of an individual's ability to gather and organize information and regulate one's actions accordingly. As this function deteriorates, one may unconsciously become dependent upon routine and habit. Consequently, one may seemingly function well in familiar surroundings but be anxious and confused in new situations. A progressive and gradual onset of dementia may be difficult for both the individual and family members to recognize and appropriately address.

A variety of tasks have significant personal and legal implications. Consider if the individual is able to consistently and appropriately undertake the following (not a comprehensive list and listed in no particular order):

1. Administer her or his own medications
2. Engage in activities of daily living such as personal hygiene, bathing, and dressing
3. Engage in shopping, food preparation, self-feeding, and housekeeping
4. Safely operate a motor vehicle
5. Manage a bank account and/or retirement funds, and pay utility bills and other household expenses
6. Vote in an informed manner
7. Make appropriate decisions concerning marriage or intimate relationships
8. Determine a place of residence and residential needs and keep the residence appropriately cleaned and repaired
9. Communicate via telephone or other technology
10. Collect and appropriately respond to mail or other communications
11. Recognize and avoid common scams and frauds
12. Recognize the need for and consent to medical and dental treatment

Certainly assistive devices, accommodations, and part-time caregivers might be a less restrictive alternative than legal guardianship and some forms of institutional living. Legally, an individual is presumed to be sane and have legal capacity. Consequently, concerned family may find it difficult to intervene when an individual is stubbornly insistent on maintaining the status quo in spite of indicators that some changes are appropriate. One may have to tragically await a fall or traffic accident before justifying intervention. However, many states allow a physician or concerned individual to report an elderly driver for retesting. These are difficult situations for all involved.

Legal capacity is often relevant at the specific time that a will was executed (signed) or a gift made. Contractually, did the individual understand the nature and consequences of the business being transacted and the effect of her or his conduct? These are frequently factual questions for a jury to resolve. Anxiety or personal problems alone do not justify a determination of incompetency. Individuals otherwise incompetent may have a "lucid interval."

A related question is if the individual is being subjected to undue influence or duress? Undue influence persuades an individual to act contrary to the natural objects of her or his bounty. This might, for example, involve large gifts to a recent acquaintance or an irrational disinheriting of family. Duress involves threats and coercion. The total circumstances surrounding the situation must be examined. A court petition and judicial intervention may be required. A marriage may be annulled by a court in some circumstances where a lack of comprehension or capacity is demonstrated.

One should, well in advance, create a durable power of attorney so that a trusted individual may act when one becomes incapacitated. Likewise, a medical power of attorney and directives to physicians are very helpful. Of course, create an up-to-date will and engage in appropriate estate planning. Consider these very basic steps as a way to remove burdens from your family and friends.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal, medical, or financial advice. Always consult legal, medical, financial, and advocacy professionals in a specific situation.