Competency and Capacity

Boston Competency and Capacity Hearing Attorneys

Recent research has found that 70 percent of people in their 80s have some degree of dementia or diminished mental capacity. Many of these elderly persons are living on their own, caring for their own home, handling their own finances, making their own health care decisions. Some percentage of these elderly people are not competent to handle their own affairs and are easy prey for unscrupulous sales people and con men.

If you have a family member who is suffering from dementia, Alzheimer’s, mental retardation, or a mental illness, and who is demonstrating through their actions or inaction that they are not capable of handling their personal affairs, it may be time to seek guardianship or conservatorship.

The lawyers at Blake & Associates have been helping individuals, families and medical institutions find resolution to the complex question of mental competency and decision-making capacity for more than three decades.

There are any number of situations that may cause you to question the competency of a family member to make sound life decisions, such as when:

• An elderly person suddenly changes a will or trust in a manner that is significantly different from all previous wills or trusts, leading to contested will litigation
• An elderly or mentally ill person receives notices that they are being evicted for nonpayment or that their utilities are being turned off for nonpayment
• A family member visits an elder’s home and finds that they do not have sufficient food but have used their money to stockpile unnecessary items

In order to establish guardianship or conservatorship and to delegate decision-making authority for an individual, the courts must first determine if the person in question is competent. This decision will be made at a “competency hearing” in state probate court. The court will examine how the person handles key aspects of daily life: how he or she handles finances, health care, and daily living activities.

While your mentally ill family member may not be functioning as fully as you might hope, the court will want to determine if the person has enough capacity to do the tasks they need to do. There is a preference for action that minimizes intrusion into the person’s affairs. If the family member is found to be incompetent, a guardian/conservator will be appointed by the court; usually this is a spouse or close relative but another qualified and competent adult may fill the role.

If the person is found to be competent but family members are still concerned that he or she is not handling certain aspects of daily life adequately, family members can look into Durable Power of Attorney as an option.

The person being evaluated at a competency hearing has a right to legal representation, to speak in his or her own defense, and to bring witnesses. If the person cannot afford legal counsel, the court will appoint an ad litem representative.

Attorney David Blake works with families who wish to file guardianship by having a family member declared incompetent.

Contact a Boston Competency and Capacity attorney at Blake & Associates.