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

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.

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.

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.

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.

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.

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.

@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!

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.

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.

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.

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.

@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.

@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.

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.

Thanks, drkernisan. That is a good clarification.

http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

hi pbassett77,

Apologies if I've missed some of the useful things people have said in the responses. Just wanted to mention that "competence" is usually determined by the courts, and that on their own doctors are just supposed to assess a person's ability to make medical decisions. We are occasionally asked to provide a letter or opinion to someone else, like a bank or a court or an assisted living facility, but as far as I know, on their own doctors cannot make someone globally "incompetent" and allow family to take over all their rights. (That said, when an older person is obviously very impaired, everyone will act as if family has the right to take over decision-making, but that can be contested.)

If you have the time and energy for a fairly technical resource, the American Bar Association and the American Psychological Association collaborated on creating "Assessment of Older Adults with Diminished Capacity" resources. One is a guide for lawyers, and the other is a guide for psychologists who are asked to weigh in re competence.
http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

Believe it or not, psychologists and doctors are often not familiar with the law, or the "best practices" on how to handle these situations.

Everything kind of varies state-by-state, but the info might help you think of how to frame the questions.

Unfortunately I haven't yet come across a similar resource that's written for family caregivers...maybe someone else can speak up if they know of one.

good luck!

pbassett77, sometimes we will tell our elders that we would promise to take care of them, but that conversation is usually at a time when everyone is doing well, no major health issues, clear heads, and able to care for themselves.

I hope your Dad can once again return to his own home, and live there for as long as he is capable.

So sorry if I offend you pbassett. Hope it all turns out for the best.

Sounds promising! - I'll keep my fingers crossed.

Just in case, though, don't get excited until you hear back from your father's GP. I hope it'll be good news, but you don't want to count your chickens. Let us know how it goes?

@countrymouse, I have contacted my father's primary Dr. I have sent him my resume to clear up the ability to work as well as emails and voice mails from his friends, showing their concern after visiting him as well. The primary is on vacation, of course, but will consult with me tomorrow afternoon. He can go in and check records, meds, etc. and determine whether a reversal of competency can be done. He is the only one who can go over my sister's head. A good friend of the primaries, another Dr. and friend of Dad, is on board to consult. This seems to be the best chance. It has been heartwarming to see how many of Dad's friends see so much life left in him and are appalled that this is being done.

PBassett, any news?

@pamstegman, I own my home and have 7.5 acres that my son has been care taking while I have gone to take care of my father in his home because I promised to do so. I also took care of my mother, also at their home, before she died. So sorry but I am fully capable of getting a job. I am fighting for my dad's right to come home, as all of us have promised him we would never put him in a home. I can only hope you don't always use this site for mean spirited comments as a way to get your kicks. My father has many friends who would not be able to visit him if he were 3.5 hours away.

@freqflyer. You are correct. We are in the states as well and my position is that since one doctor signed off less than two weeks after the fall and the other less than three weeks, it was done prematurely. Maybe it is only temporary as one of you responded but it is working and he goes to a board and care on tuesday. Thank you for your response. I will know more tomorrow and will keep you informed.

So it looks like pbassett wants to continue to care for dad, in his own home, but is being roadblocked by the POA and Health Care Proxy. So sorry, but two doctors opinions would outweigh the child who is a paid caregiver. So pbassett should think about finding a job and a place to live for now. If at some future case review dad is showing signs of competence pbassett could then take him into her own home.

I was under the impression that it takes two doctors to find someone incompetent. And that the test are quite lengthy here in the States. Correct me if that is wrong? I realize different countries have different rules.

As for selling the house, the closing/title company will ask for a Power of Attorney that says the person representing the owner has permission to sell the house on behalf of the owner. If the POA isn't written correctly, everything comes to a stall.

pbassett77, I am glad your father's friends are on your side in this. And I hope after you consult an attorney you come back and tell us how this unfolds. We learn from each other.

@jeannegibbs. I have lived with my father for the last 2 years. I have been there primarily because of a serious heart condition and instability. I was being paid expenses by my sister but the money paid would be taken off the top of the sale of the house when dad passes and then the remainder split 4 ways. As I stated but you might not be aware, dad was president of the SIRS branch and a member of the great books organization. He was alert and oriented x 4. I do not know what level of authority has been given to my sisters, but a realtor was at the house on thursday afternoon and that was the intention of my sisters. Thanks for the post

@fregflyer, My father has been declared incompetent. He has no rights unless he gets it back. Hard to do. That is my mission.

You could give us more information, such as whether you live in his house, whether you were being paid for caregiving, and the level of your dad's competency before the fall. Then we could commiserate with you, sympathize with you, offer suggestions, and generally discuss your situation.

But it seems to me that your basic question is legal, and you need to have proper legal advice regarding it. Do your sisters have the authority to sell your father's house? Do they have the authority to place him in care against his wishes? In turn, those answers may depend on whether your father is now competent to make his own decisions. You may have the right to contest the house sale until a current opinion can be obtained regarding the competency question. I don't know. I am not a lawyer. But it seems to me that is the kind of advice you need.

When my mother broke her hip she was delirious in the hospital. It was clear to anyone that she could not even understand the questions about her treatment. The hospital turned to her family for answers. She did recover to her former level of functioning. That the hospital treated her a (temporarily) incompetent to make medical decisions did not confer on us the authority to sell her property (for example) after she recovered. If your sisters are acting on the basis of Dad's incompetency, see a lawyer about if you can insist on a competency hearing.

Doctors avoid telling patients the truth all the time, if they think it is in their best interest. My mother's doctor, for instance, has never told her that she has dementia. Or by "going home" the doctor may have meant "to your new home." Or even just "Out of the rehab place." I really don't think pursuing the doctor's "lie" is worthwhile. Just focus on whether your sister have the authority to do what they are intending to do.

Also realize that selling the house is NOT similar to getting their inheritance early. Your father is not dead. That is his money and must be used solely for his needs and care.