Legal designation of incapacity. - AgingCare.com

Legal designation of incapacity.

Follow
Share

My question is....if a person is to be deemed legally incapable of making their own decisions, this is something that has to be done in a court of law? I know I seemed to answer my own question using the word "legally"........but....my 91 yo mother has refused for years to see a doctor and has been living in deplorable conditions. APS says no one has had her declared incompetent so she can live as she chooses. I have stayed with her, getting her groceries and performing various logistical needs for her. It has been very stressful with the daily angry hysteria, slaps and spitting in my face, etc In May she fell and has fractured her hip and broke her wrist. She has spent about six weeks in a rehab facility. I took the opportunity to get her to a geriatric specialist. He determined she has dementia, and filled out a paper saying she is not capable of making medical decisions. He also found she has thyroid, anemia, UTI, and other issues and has prescribed meds. She is due to be discharged from the rehab place shortly. They say she needs a walker, and has made other recommendations. She vehemently refuses any help at all. There is a board and care I want to place her in, but understand how it stands now, if she flat out refuses to go there, and refuses to take her meds, there is no legal way to enforce it. Back to my question then....the document signed by the doctor is not enough to put the "power" into my POA? I still need to go through a court of law if she is to be declared to legally not have capacity? Besides providing her with her care, I want to make sure I do not do anything I have no legal basis to do; and that I do not do anything that seems legally neglectful because of what the doctor wrote. Side note, I really think when someone is younger and prepare a POA document, they need to describe what their clear minded wishes are, and provide that their POA may have to take an adversarial stance about things they say when they are getting dementia.

This question has been closed for answers. Ask a New Question.
16

Answers

Show:
If you have to have a Guardianship and if she has already been diagnosed with dementia there is a good possibility that a lawyer will not draw up POA's and that they will suggest a Guardianship is the only thing that can be done.
there are 2 types of Guardianship Guardianship of the Person and Guardianship of the Estate.
You will have to go to court and you or someone will be appointed Guardian. There will be a GAL or Guardian Ad Liedum (sp?) this court appointed person will check in once in a while to make sure that you are following the "rules" this person will have to be paid. You will have to be bonded, the cost will depend upon the value of the assets.
You will have to keep ALL receipts that will prove how much you have paid to her care. If you have paid out of pocket you can be reimbursed from her account. If she is living with you you will be able to deduct some rent, some for electricity, gas...it might be possible that you could be paid for care giving services. I could not since it was my husband I am caring for.
You will have to keep all records and go to court every 6 months to present to the judge the expenses. (actually the lawyer goes but you have to provide all the info to the lawyer so they can prepare)
This costs a bit money for the lawyer, for the GAL, for the bond, for court. Not pleasant. Once the money runs out you are then Guardian of the person. No longer will they need a guardian for the estate and the person.
There are pamphlets the you might be able to see on line about Guardianship and what it entails.
Helpful Answer (0)
Report

Crsky58:

Get the File

Durable Power of Attorney Form

I, _________________ (name), of ____________________________(address), designate _______________________(name), of ___________________________(address) as my attorney-in-fact (or agent) to act on my behalf should I become disabled or legally incapacitated.

Upon the event of my disability or legal incapacitation, my agent has the authority to act in my place in any way that is lawful regarding the following powers:

To maintain and manage any of my real or personal property
To buy, sell, or lease any of my real or personal property
To borrow money on my behalf
To conduct banking transactions including liquidating, consolidating, endorsing checks, depositing, and withdrawing funds
To prepare, sign, and file tax returns
To enter into contracts on my behalf
To collect government benefits
To access safety deposit boxes and remove the contents therein
To handle any legal proceedings or lawsuits on my behalf
To maintain a standard of living for me
Helpful Answer (0)
Report

Clrsky58:
Execution

In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal.[4] This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party.[citation needed] Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge.[citation needed] However, such notarization is not always necessary for such a document to be considered legal.
Helpful Answer (0)
Report

Clrsky58:
Medical Power of Attorney

A medical power of attorney is one type of health care directive -- that is, a document that set out your wishes for health care if you are ever too ill or injured to speak for yourself.

When you make a medical power of attorney -- more commonly called a "durable power of attorney for health care" -- you name a trusted person to oversee your medical care and make health care decisions for you if you are unable to do so. Depending on where you live, the person you appoint may be called your "agent," "attorney-in-fact," "health care proxy," "health care surrogate," or something similar.

Your health care agent will work with doctors and other health care providers to make sure you get the kind of medical care you wish to receive. When arranging your care, your agent is legally bound to follow your treatment preferences to the extent that he or she knows about them.
Helpful Answer (0)
Report

To Caringson : Bless your heart. I need for you to tell me what that was like, because I think I will have to do the same thing, and I want to know what I will be facing. You can tell me here, or you can tell me in email, if that's Allright. Thank you.
Helpful Answer (0)
Report

Seems to me the geriatric spec you took her to already declared her incompetent by declaring dementia. If not go back and ask him to write that out so you have proof. Remember she cannot appoint a poa then. If that has not yet been done tell her if she does not declare a Dpoa now the state will appoint anyone they want whom she will not know or they will not know her. Wouldn't you rather have someone who loves & cares for you.
Helpful Answer (0)
Report

Talk to the Social Worker at her rehab. Ask to have her evaluated for long term nursing care. My POA gives me the right to make decisions for my Mom. With a POA and doctors note there should be no problem. Tell them with her fall, u feel u no longer can take care of her. Fractures are dangerous at that age. I don't think a court gets involved unless there is no POA or guardianship. Just the hitting and spitting is a good excuse to have her in long term care. Good Luck.
Helpful Answer (1)
Report

I meant Clrsky58---so sorry...
Helpful Answer (0)
Report

Ckrsky58: Here you are as below----
Full Definition of incapacity
plural incapacities

: the quality or state of being incapable; especially : lack of physical or intellectual power or of natural or legal qualifications
Helpful Answer (0)
Report

I'm not sure what the situation is one way or the other, I'll definitely check out her competency level, this will tell you everything you need to know. Maybe she might have Alzheimer's as I first thought but then again maybe not, I don't know either way. Until you get her competency level checked it'll be hard to tell, but the results will tell you all you need to know so you know what to do next
Helpful Answer (0)
Report

This question has been closed for answers. Ask a New Question.
Related
Questions