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Legally Incapacitated vs. Understanding Legal Incapacity If someone close to you is legally incapacitated, it generally means they cannot manage their own financial affairs.
Legal Incapacity, Incompetence, and Estate Planning If a loved one is incapacitated or incompetent, you may need to pursue guardianship and conservatorship for them through the court in the state where they reside. Divorce is never easy, but we can help. Learn more. Free Online Law Dictionary: Incompetency. Related Articles. Browse by category Bankruptcy. Name Change. Power of Attorney. Ready to begin?
A care manager colleague also pointed out to me that conservatorship in California means one has to periodically return to the court and account for what has been done.
Thank you Dr. Kernisan for writing this article. I look forward to sharing this with my audience. I appreciate all the info included in your article. My 96 yr old dad lives next door. I never asked for any thing and worked hard at my jobs, retiring early after 26 yrs teaching because they needed help getting to dr appts erc.
And since dad is paying ALL my brothers expenses now for apt, 2 autos, insur, groceries, etc my brother is not even looking for a job. I know my dad has Alzheimers. He is a retired state judge, and even his lawyer friends told me they would testify he is incompetent, but I can imagine the fight in court if I try to have him declared incompetent. He just gave my brother a deed for 30 acres of land to use as collateral to build a house for my brother — bulldozers are clearing the land today and I believe he is already using drugs again.
I feel so helpless and hopeless that dad will literally spend every penny. I know you cannot offer legal advice, but reading your article has helped me think of a few things to try.
Thank you. Wow, sounds like a difficult situation. Taking financial advantage of an older person can sometimes also constitute elder abuse. Some will delay the transaction while they wait for confirmation that the older person has mental capacity to complete the transaction. Sometimes a conversation mediated by a geriatric care manager or other professional is more productive, because they have experience managing these types of difficult conversations.
Last but not least, I recommend you listen to my podcast interview with attorney Carolyn Rosenblatt ; she specializes in sorting out these types of situations and provides a lot of insights during the episode. There are lots of options available. One good option to consider if you are worried about his safety while living alone is a personal alarm which he can press if he is in trouble.
It will give you some peace of mind! I read your post with great interest and can relate to a lot of what you have said. Hello, I have read all the posts on this topic…however, I have a different problem. My mother is 74, and is losing her memory, and has type 2 diabetes.
She retired over 4 years ago, and lives alone. Things have gotten really bad between my mom and I in the last few months, due to this person filling her head with lies. I had to stop doing this for her, and let her do her own thing because this person has gotten into her head.
Lisa Marie. He does sound like a very shady character and I can see why you are worried for your mother. It also sounds like a potential financial abuse situation. There are a couple options for you to get help. You can find your local office by using the Eldercare.
You can also find your local Area Agency on Aging at Eldercare. They may or may not intervene, but they should be able to tell you who else you can call. You might even get this person to back off by telling him you are reporting him to the police. Adult Protective services sometimes initiates this, if they think a situation warrants it. You might also be able to learn more about this through nonprofits in your area, or you may want to consult with an elderlaw attorney.
If your mother is losing her memory, is alcoholic, and is making choices that put her wellbeing and safety at risk, then she may need at least partial oversight from a conservator or guardian. Establishing such oversight is done through a court process. The alternative is to invoke a durable power of attorney and establish that she has become incapacitated, but often when these situations come up, the older person has not set up a durable power of attorney. Good luck and keep going!
I think Adult Protective Services will be a good starting point, but also sounds like you may have to think about how you can oversee things for you mom longer-term. Thanks again Dr Kernisan. Good luck and keep in touch! Occupational therapy practitioners are highly trained in this area and can work with both the patient and their families to approach and evaluate a situation such as the one described in this article.
More importantly, they are trained do it in a non-threatening way. The environment might need to be modified to simplify the process of keeping it clutter free and manageable. For example, I had a patient who could not stand at the sink long enough to do the dishes, so they would pile up in the sink.
This was a drastic change for her and her children noticed. Working with her, we came up with a simple solution of keeping soapy water in the sink and having her drop the dishes in to soak after her meals. This made it is easier for her to throughout the day go and and rinse them and put them on the drying rack without spending ten min at the sink.
We also modified her kitchen set up so she could easily sit down to perform the task or meal prep and changed her where she stored items to make it easier for her to have access to cabinets.
This is just a small example. I hope it helps. Thank you so much for the great work you do Dr Kernisan. I really enjoy your podcasts and articles and always learn a lot from them. Thank you for sharing this example. I agree that occupational therapy OT is often very helpful and would love to see more older adults accessing this type of help.
Most older adults will need a referral from a health provider, to get an OT evaluation. My own patients have sometimes gotten them at home as part of home health care services, which they get either due to recent hospital discharge or because they are homebound and have a need for skilled services. What a great article—jam packed with good ideas and resources. I have also found the daughterhood. So glad you liked it. I, too, am a fan of Daughterhood.
This has been a taboo subject — but I find more older people are talking about this openly. I think it will always be a tough topic that many people avoid, but agree that more and more people are becoming open to planning. Wow, this is so informative. My in-laws just had a visit from APS today.
We have no idea who called them but they are blaming us. We have been paying their bills for them online for about 8 months because my mother-in-law kept overdrawing their checking account.
They have not had any NSF charges or utilities turned off while we have been helping. In addition, we do their grocery shopping and lawn care for them.
Now APS shows up at their door and they are convinced we did this to them. They have a poor relationship and he sleeps most of the day to avoid his wife.
I could go on and on, but what I need to know now is what will happen now that they are on the radar of APS? Sounds like there are some concerning issues going on. It is actually possible that it was a health provider, as they are mandated reporters in many states.
In terms of what happens next, that is extremely variable. APS offices are locally run, often locally funded, and what they do is determined by their local policies and also state law. You could call your local Area Agency on Aging or even the APS office, and they might be able to tell you more about how the process usually unfolds in that area. Re Social Security, there is a representative payee program for people who are having difficulty managing their funds appropriately.
Generally, we look for family or friends to serve as representative payees. Otherwise, I would generally recommend avoiding arguing with your in-laws, and trying to instead establish as positive a relationship as possible. When older adults feel heard, understood, and respected, they are more willing to consider accepting at least a little help. Of course, the problem is that adult children are often quite frustrated and stressed out by the situation, plus many have loaded relationships with our parents to begin with.
My father has been getting really difficult to help recently. Thank you for the advice about wording things in a different way to help him go to the doctors.
I will make sure, I always let him know that I want to help him. I am also thinking of finding a nice assisted living service. My dad is my priority, but I also need to make sure I am taking time for myself as well. Sorry that your father is getting difficult to help. Good luck! She is a severe diabetic, legally blind and is severely depressed. She has been living on her own but with a recent trip to the ER due to her blood sugar dropping too low, I was forced to move my 20 year old son in with her to assist in taking care of her.
He is not a certified care giver but at least I have eyes and ears in the house with her and he can call someone if something is not right. I took my mother to the doctor yesterday to get a referral for home health care. We talked about this a couple of weeks ago and she was all for it. In front of the doctor she decides she does not need home health care. She tells the dr. I tell the dr. I have medical and financial POA on her and I am the sole beneficiary to her will because my brother is deceased.
She is over drafting her bank account and does not remember conversations. The possibility that a defendant committed a serious crime does not warrant an extended commitment period, because that would violate the defendant's due process rights.
At the end of a four-month commitment, if it appears that the defendant's competence can be restored but more time is needed to do so, the defendant may be hospitalized for an additional 30 days to 18 months. The length of stay varies by state. If a hospital director certifies that the defendant's competence has been restored, the court holds another hearing.
If the court agrees the defendant is competent, they are released and a criminal trial date is set. Such a competency ruling cannot be used as evidence against the defendant if they later pleads insanity as a defense in the criminal trial. An insanity defense refers to the defendant's inability to know or appreciate right from wrong at the time of the alleged crime.
The Jackson ruling also specified that "treatment must stop if there is no substantial probability that the defendant will regain trial competence in the near future.
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