Competency & Capacity

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 and making their own health care decisions. Some of these elderly people do not have the capacity to manage their care or finances and are easy prey for unscrupulous sales people and con men or women. Very often these individuals are also not receiving appropriate medical care.

If you have a family member who is suffering from dementia, Alzheimer's, mental retardation or a mental illness, and who is demonstrating through his or her actions or inaction that he or she is not capable of handling his or her personal affairs, it may be time to seek guardianship or conservatorship. This can be an involved process, especially since a number of changes have been introduced to the Massachusetts Uniform Probate Code.

Understanding What Your Options are When Competency Issues Arise

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, which could result in will litigation if not appropriately handled during the elder's life.
  • 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
  • A family member has suspicion that the elderly person is being unduly influenced by others

Determining Competency

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 does not have the requisite capacity. This decision will be made at a Guardianship or Conservatorship "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 with those powers necessary to protect the person while also minimizing intrusion into their life.

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 Health Care Proxies and 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. 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 for guardianship and conservatorship.

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

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