Definitions of Incompetency

As we and our loved ones age, we worry about losing our edge, and even becoming incompetent.  If we are worried about a family member’s ability to continue to make good decisions, we may talk to their doctor about whether the person is still competent to manage his own affairs.

Whether someone is competent is actually a legal, not a medical decision. Only a court can make the official determination of whether a person has sufficient understanding to make or communicate decisions.  What’s more, someone can have the capacity to make some decisions, but not others.  For example, in order to make or sign a will, a person only needs to demonstrate that he understands the scope of his estate and “the objects of his bounty” (in other words the people to whom he wants to leave it).  However, that same person may require a conservator because a physical or mental condition causes him to be unable to effectively manage his property or financial affairs.

Mental health professionals will often determine that a person is incompetent because she has been diagnosed with a condition that affects cognitive ability from which she will not recover, such as Parkinson’s Disease or Alzheimer’s Disease.  While this individual may eventually be determined to lack legal capacity, the diagnosis alone does not mean that she is not able to receive and evaluate information to make and communicate decisions at any given moment.  People at early stages of these conditions are often very capable of understanding and executing powers of attorney and other legal documents.  Moreover, the fact that the person may have difficulty remembering that she has signed such a document does not mean that she did not have a full understanding of what she was doing at the time.

The best way to avoid a conflict about whether a person had the capacity to sign powers of attorney or estate planning documents is get them done when you are young and unquestionably in control of all mental faculties.  Accidents can occur at any age, and disease can creep up on us when we least expect it.  Planning ahead is the best defense.

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