Father declared incompetent but fully recovered. Can decision be reversed?

Thanks, drkernisan. That is a good clarification.

We'll I would say you will need to get an attorney and possibly fight this if you are that insistent, but consider the trauma of all this fighting, etc. on dad. The court can order an independent evaluation of dad and his abilities and prognosis. You will have to pay for that and attorney and court costs.

Secondly, your sisters can sell the house, but those funds will have to go to dad's care --you and sisters are ill informed if you think they can just split the estate and keep the funds for yourselves. It doesn't work that way.

@drkernisan, Thank you so much! I have been looking for just this type of resource. The telephone conference is tomorrow afternoon. I have research to do! You are most likely spot on as far as this seems to have been handled. I no longer desire to even attempt to cast blame, I just want to do my best to get Dad home, if possible. I am hoping that nothing is written in stone yet, as there has been nothing filed with the courts as of today. You have all been so supportive. Know that you are supporting a wonderful man and excellent father. I will let you know how it goes.

@sunflo2. I am hoping that we are just at the medical decision competency stage and Dad's primary Dr. will be able to re-evaluate and this will go away without court and attorneys etc. This is still a possibility from what I have been able to learn. We will see. I share your concern regarding the three ring circus that court would put Dad through. Thank you for responding.

The doctors are going along with your sisters. The doctors in the facility ( unless they had contact with your dad BEFORE he fell) are reliant on the family to fill them in as to what he was like before and what his "living situation" will be on discharge. Jump in there, talk to them, put it in writing and see if you can get a court guardian to step in. But if you do be prepared to take care of him in his home. Some decline after traumatic injury especially at his age is to be expected. and find out who's what with all the POA's. My Father had my grandmother's doctor sign note she was no longer capapble of making her own decisions, then took her to a different attorney and changed everything directly to him. Then allowed a homeless man to move in and care for her personal needs and spent all her money and sold all her posessions including her clothes.

One additional note. Without legal intervention, his money doesn't HAVE to go anywhere, yes, it's illegal and immoral, but how are you going to get it back once it's gone? (My father ran up more debt than her liquid assets, in HER name AND got her kicked out of nursing home for non payment) There are NO agencies to oversee this, it's up to family to pursue legal action.

I agree with the above, is there a durable power of attorney, if not speak with your father and discuss who he wants to manage his medical and financial affairs in the event he becomes unable. As far as being capable to make decisions, competency can be complicated. When someone is ill, it is not unusual for them to be confused or delusional but once they recover their mental capacity returns. If this is the case with your father, I would attend his next dr. appointment and ask the doctor to evaluate his mental status/capability. If the person recovers and there are no other factors the incompetency/incapability statement can be reversed. What does your father want to happen? The sister's can't just sell his house out from under him. Your father's poa if there is one, must act according to your father's wishes or act in his best interest. There are programs that can assist an elderly person to remain in their home without having to enter a board and care home. Contact your local Area Agency on Aging or Bureau of Senior Services for information on services, power of attorney, exploitation and other information. I hope all works out.

I have to ask. Why do you not want the house sold? Where he WANTS to be and where it makes SENSE for him to be are often two very different kettles. He's 92 years old. He doesn't need a $600K home. You've been taking care of your dad at his home. Maybe your sister, the trustee, is no longer comfortable with that. As the trustee of his finances, she's more than likely in completely control of what happens to his home. If you don't want it sold, then you should communicate your reasoning to her and hope she agrees. There's really not much you can do, in my opinion.

Your dad's health and mental status could change in a heartbeat. On the surface, if I were your sister, I'd want his home sold as well. Time to consider 24/7 caregiving for him.

@pbassett, glad to be somewhat helpful. I've taken a closer look at the thread, since I'm a geriatrician and this kind of situation is of great interest to me. Here are a couple of thoughts that I hope will be of use.

As others have pointed out, it's very common for older adults to be confused and lose a lot of mental capacity right after an illness or injury. It often takes weeks to fully recover, and I've seen people slowly get better over a year.

Doctors are NOT supposed to make permanent assessments of mental capacity at this time, we're supposed to give people time to get better. (But many docs don't know this.) Now, there are decisions that have to be made while people are impaired, like how to manage a safe discharge, and so in the hospital if someone doesn't seem to have capacity to manage that, we have to turn to family/surrogate decision makers.

You can and should point out to your sisters, the realtor, the doctors, etc, that an assessment of your dad's mental state in the weeks after injury cannot be grounds for taking away his rights permanently, or making major changes such as selling his house.

You can also remind them that taking away rights and declaring global incompetence usually requires courts and more proof.

You can point out to the realtor that a hospital doc's opinion is not enough to give your sisters legal authority to sell his house. Even without having a lawyer, if you express concerns that the sale may not be legal, this will probably give the realtor pause and buy you some time.

You did mention a trust, and you may want to find out what are the criteria specified for letting another person take over the trust...could be a little different than your state's standard for a person losing their rights. I have occasionally submitted opinions on a person's cognitive capacities and given it to people involved in a trust.

I personally always specify in my opinions what the deficits are, what the circumstances are, and how likely it is that the problems will persist or worsen. But many doctors write very vague letters saying "so-and-so cannot manage their affairs." This is very sloppy but it's considered the historic norm so I think we can't fault docs too much for this.

However, you CAN ask docs to reassess, and you can ask them to specify in writing just what problems they are observing, what they think the cause is, and whether they think it's permanent or temporary.

I would involve APS if you haven't already done so. They are usually understaffed but it should be free for you, and they might be able to offer you some useful advice.

You also mentioned Kaiser; if your dad is a Kaiser patient then I would also see if you can get any help from their social workers or maybe an ethics consult. (altho the ethics consult often only seems to be for hospitalized patients facing end of life quandries)

good luck!

Drkernisan, one thing you said struck a chord with me ... that recovery can be slow. My husband had Lewy Body Dementia. In the ten years he lived with it there were a few incidents when he needed PT and/or OT after hospitalization. EACH time one of the therapists took me aside and told me not to expect him to return to his baseline, that the decline would be permanent. And each time he returned to his before-incident baseline. That took 4 to 6 months and the therapists were long gone by then, so they never got to see how wrong their prognosis was. No doubt they are still passing on this inaccurate assessment to other caregivers.

It is really too bad that not all medical professionals understand that healing and recovery can take a very long time in the elderly, especially with dementia, but that it is still possible. My husband's wonderful neurologist (Mayo Clinic) understood that and so did his geriatrician.

Thank you for your participation in this thread.

oh, I only wish I had more time to write on these threads, but glad to be of a little help every now and then. thxs jeannegibbs!

BTW I'm very glad your husband was able to recover from his hospitalizations, but as you prob know, a certain number of older people never do recover to their baseline :(

I often tell my patients and families that we want to hope for the best but be prepared for the quite possible. Dementia and illness have such variable courses and I think we often don't do a good job of supporting families through the uncertainty. Most docs don't have the training and almost everyone is short on time.

I imagine your husband's recoveries were in no small part due to the supportive and loving environment you helped provide. I've had a few patients get much better once their families took them out of rehab (even against-medical-advice, once).

I just wish society offered more resources and support for caregivers, and also for medical care at home. Things are improving, but it still feels like slow progress.

pbassett77, There is not a state in this country that will allow an adult to be declared incompetent without a court order. A POA cannot sell the recipient's house without the court order and all funds from the sale of the house must go to the recipient's care as long as they are alive. Doctor's can declare a person incompetent, but can only be used to be presented as a recommendation before a judge in a court of law. The real estate agent may not be aware of your father's legal status. No legitiment Real Estate Agent is going to handle the sale of a home under the circumstances you have stated. Letting the Agent know could stall the sale of the home.

Actually, Debralee, Real Estate agents don't ask about ownership documents or liens on a property, they leave that to the lawyers at closing. In pbassett's case, the house appears to be in a trust, so the trustee /trustees could decide to sell the property. This will leave pbassett forced to move out and without a paycheck, having to seek employment.

Well, there is another factor to consider, and that is what led to the fall in the first place. Even with a good recovery, it might not be ideal for him to live at home alone.

I know that a guardianship can be contested, but that's not what you are going for here; and if there is a question that POAs are not acting in the best interest of the person, they can be removed...but if something is really being done improperly, it sounds like you need to lawyer up and pronto.

Drkernisan, my husband's doctor agrees about the positive impact of the supportive environment I was able to create. But that is kind of my point and frustration with the gloom sayers. I'm afraid that sometimes negative predictions become self-fulfilling. Nobody expects this person to improve and they treat him as if he won't and so he doesn't.

My husband's PCP at the time of his "meltdown" said, "He appears to have dementia. Here is a prescription for a walker which might help prevent some falls. Good bye and good luck." No referral to a specialist, no suggestions for any drugs (not even aricept) no advice about support groups, nothing. She did not expect him to improve and he was off her radar even before we left the room.

Thank heavens that the Mayo Clinic doctor (Brad Boeve) had a very different attitude. He was clear about the disease having no cure, but he assured us that the various symptoms could be addressed, one by one, and set about doing that.

Yes, caregivers need to know the possibilities to be prepared for, and false hope is a painful trick. But no hope at all is worse, in my opinion, and does become self-fulfilling.