Have you ever been concerned about an older relative who seems to be making bad decisions?
Perhaps your elderly father insists he has no difficulties driving, even though he’s gotten into some fender benders and you find yourself a bit uncomfortable when you ride in the car with him.
Or you’ve worried about your aging aunt giving an alarming amount of money to people who call her on the phone.
Or maybe it’s your older spouse, who has started refusing to take his medication, claiming that it’s poisoned because the neighbor is out to get him.
These situations are certainly concerning, and they often prompt families to ask me if they should be worried about an older adult becoming “incompetent.”
In response, I usually answer that we need to do at least two things:
- We should assess whether the person has “capacity” to make the decision in question.
- If there are signs concerning for memory or thinking problems, we should evaluate to determine what might be causing them.
If you’ve been concerned about an older person’s mental wellbeing or ability to make decisions, understanding what clinicians — and lawyers — mean by capacity is hugely important.
In fact, the American Bar Association’s Ten Legal Tips for Caregivers lists “Understand Decisional Capacity” as tip #1. But so far, I’ve found very little information available online, to help older adults and families understand this important issue.
So in this article, I’ll answer some of the frequently asked questions that come up around this topic:
- What does the term “capacity” mean when it comes to decision-making?
- What is the difference between incapacity and incompetence?
- How is capacity determined?
- How do Alzheimer’s disease and other forms of dementia affect capacity?
- Does capacity have to be determined by legal professionals? Is it a “legal decision” whether someone has capacity?
- Do I have to have a legal or clinical determination of incapacity for a specific decision before I override the decision of an older person with dementia?
I’ll also share a list of additional resources and references at the end.
What does the term “capacity” mean when it comes to decision-making?
Let’s say you tell me that your 87-year old aunt Mary has been falling repeatedly, but she refuses to go see a doctor.
In this case, we might consider whether she has the capacity to decide whether or not she needs to see the doctor. It’s especially vital to do this if Mary has been showing signs of memory or thinking problems, or if she’s been diagnosed with a dementia such as Alzheimer’s.
When we ask whether a person has the capacity to make a given decision, we are asking whether the person can show us that he or she has the mental abilities necessary to make the decision.
Generally, capacity requires that individuals be able to understand:
- The situation they are in,
- The decision in question,
- The consequences of making a given choice.
The person should also be able to explain his or her reasoning, and express the choice to others. And the reasoning should not rely on anything that strikes most people as bizarre or delusional.
Experts have determined that capacity requires these four decision-making abilities:
- Understanding: Understanding the issue/decision and the available options
- Expressing a choice: Being able to state a decision
- Appreciation: Being able to explain how the information about the situation and available options apply to one’s personal situation
- Reasoning: Being able to compare options and understand the relevant consequences.
Different types of decisions require different types of mental abilities. Experts consider that these six civil capacities are of particular importance for older adults:
- Medical consent capacity
- Financial capacity
- Testamentary capacity
- Sexual consent capacity
- Capacity to drive
- Capacity to live independently
Legal standards for capacity are determined by state law. The specific requirements can vary, depending on the state and the type of capacity in question.
People sometimes assume that decisional capacity is an “all-or-nothing” type of ability: either you have it, or you don’t. This is sometimes framed as whether a person is “competent” or “incompetent” to manage affairs. (See below for more on capacity and competence.)
But the reality is more complex. Here are two essential points everyone should understand.
1.Capacity is decision-specific.
This means a person’s capacity should be evaluated in light of a specific decision to be made.
Why does this matter? Well, some decisions are complex and require a person to consider and weigh multiple pieces of information. For instance, the decision to sell one’s home, which may involve consideration of tax and estate consequences, is often quite complex.
In comparison, some decisions may be relatively straightforward. For this reason, it is possible for a person to lack capacity to make certain types of decisions while retaining the capacity to make simpler decisions.
2. Capacity can fluctuate, depending on a person’s health circumstances.
For instance, most people immediately after surgery are drowsy. In this state, most will lack the capacity to address anything more than a very simple decision. But, their decisional capacity should improve as the person mentally recovers from the surgery.
It is also common for people with vulnerable brains, such as people with a diagnosis of Alzheimer’s or another dementia, to experience fluctuations in capacity. When they are feeling well and are at their best, their mental abilities might be good enough for them to have capacity for many decisions. But if they are sick, or stressed, or otherwise not thinking at their best, their capacity to make decisions can be reduced, sometimes drastically so.
For these reasons, before concluding that a person lacks capacity for a given decision or task, every effort should be made to improve capacity if at all possible. Such improvements may be possible by treating an underlying health problem, or by mitigating any hearing or vision problems.
I explain a simple device that geriatricians often use to improve hearing here: Age-Related Hearing Loss: What to Know & What to Do.
What is the difference between incapacity and incompetence?
Capacity is often considered from a clinical perspective (i.e. by doctors, psychologists, and others) versus a legal perspective (i.e. by lawyers, judges, and courts).
Historically, the term “competence” was used in legal settings and the term “capacity” was used in clinical settings. The legal determination of competence related to whether a person had the legal right to make their own decisions, and was usually informed by a clinical assessment of capacity.
Hence many clinicians will still say that they cannot assess someone’s “competence;” they can only assess their capacity as regards a given decision or life function.
However, states have recently been moving away from global legal determinations that a person is “incompetent,” — which often meant the loss of virtually all control over one’s affairs — and are increasingly favoring determinations of incapacity for certain types of decisions or life functions.
Hence the old convention of using “competence” for the legal arena and “capacity” for the clinical one no longer works well.
Instead, it is more accurate to refer to “legal capacity” versus “clinical capacity.” These two concepts are distinct – albeit related — as explained further below.
How is capacity determined?
In most situations, we presume that adults have capacity. If concerns about capacity are raised by others, or if a professional notices anything to cause concern about capacity, then a process of further assessing capacity may be started.
Legal professionals are generally required (by state laws and by their professional code of conduct) to conduct a preliminary assessment of a person’s capacity to complete a given legal task. They may be required to take action if they believe a person may not have capacity for the issue at hand.
However, legal professionals are not trained to clinically assess capacity. Such assessments must be done by professionals with some type of healthcare — often psychology — background.
Clinical capacity assessments vary depending on the type of clinician involved and the capacity issues in questions. Generally, they include a more detailed evaluation of the person’s capabilities, and should also include the likely medical causes for any reduction in capacity.
This article describes a very practical framework for assessing capacity for older adults to make common decisions: Everyday Decision-making Ability in Older Persons with Cognitive Impairment.
A clinician’s evaluation of capacity will result in a clinical opinion regarding the capacity in question. Clinicians sometimes may state that a person appears to have marginal or borderline capacity for the decision in question.
This clinical opinion can then be used by legal professionals to help them complete their legal determination of capacity.
How do Alzheimer’s disease and other forms of dementia affect capacity?
Any disease or disorder that disrupts cognition — the brain’s memory and thinking processes — can impair a person’s decision-making capacity.
In early Alzheimer’s and dementia, people usually retain the capacity to make many types of decisions, but not necessarily all of them. It all depends on the decision in question, and also on which thinking processes seem to be most affected in a particular person.
For decisions that are complex or high-stakes (e.g. those related to property or large sums of money), it is a good idea to assess the person’s capacity to make the decision in question, before proceeding.
It would also be appropriate to consider or assess capacity if the person with early dementia is making questionable decisions that affect their health or safety.
As dementia progresses over time to a moderate stage, people will lose the capacity to make all but the simplest decisions. At this point, a family member or other trusted person will generally have to make most decisions on behalf of the person with dementia. For this reason, people diagnosed with Alzheimer’s and other dementias are highly encouraged to designate a power of attorney for healthcare and for general affairs, while they still have the capacity to do so.
Does capacity have to be determined by legal professionals? Is it a “legal decision” whether someone has capacity?
Yes, in principle capacity is a legal determination and should be made by legal professionals.
However, in most states, physicians and other clinicians are allowed to determine capacity for medical decisions, especially for the purposes of enabling a surrogate healthcare decision-maker to act.
In the real world, many people take action without fully understanding the laws and procedures related to capacity, or without consulting a competent lawyer. Such actions often proceed unless another person brings suit to contest the actions.
For instance, it’s fairly common for family members and others to take action based on a physician or other clinician opining that an individual has become “incapacitated” or “incompetent.” But such actions may be on shaky legal or ethical ground, especially if actions of major consequence (e.g. sale of property) take place. So if a family suspects loss of capacity, it’s best to seek legal assistance before proceeding.
Do I have to have a legal or clinical determination of incapacity for a specific decision, before I override the decision of an older person with dementia?
Yes, you should seek a clinical assessment of capacity if you are concerned about a dementia such as Alzheimer’s disease. This is especially important if you believe it has progressed to the point that a person has lost the capacity to make certain decisions.
If you feel you need to override the person’s decisions, for instance to protect the person’s physical safety or financial wellbeing, you may need a legal determination of incapacity.
If the person with dementia has completed a durable general power of attorney, the agent should be able to act on their behalf. To override decisions made by the person with dementia, the agent will often need to provide proof that the person has lost the capacity to make certain types of decisions. Many power of attorney documents specify the criteria for deeming the principal incapacitated, although some are pretty vague about this.
If the person who has dementia has not completed a durable general power of attorney, then you will probably need to consult with a lawyer, to determine whether the person still has the capacity to designate a power of attorney. If the person is lacking this capacity, then you may need to pursue guardianship in court, in order to override the person’s decisions.
Even if you have secured a legal determination of incapacity for certain decisions, it’s vital to act in accordance with ethical best practices that respect the person’s autonomy and dignity to the greatest extent possible.
Do I need a legal or clinical determination of incapacity before I take the car keys away from an older parent who has dementia and is an unsafe driver?
If you are concerned about dementia and driving, you should make every effort to obtain a clinical assessment of capacity to drive safely. A legal determination of incapacity to drive will also help ensure you are on sound legal and ethical footing.
It’s also essential to learn more about your state’s options and requirements when it comes to reporting potentially unsafe drivers. For instance, some states require clinicians to report moderate or severe dementia to the DMV.
However, many families find that the older person in question is refusing to see a doctor or attorney. In this case, you can still call the doctor and report your concerns. Privacy laws such as HIPAA do not require families to get permission to reveal details to the doctor; they only require health professionals to have permission — or other good reasons — to disclose a patient’s information to others. If the doctor has a good relationship with the older person, they may be able to persuade them to come in for a visit.
Or, you can try calling Adult Protective Services; they don’t take a person’s car keys away but they can sometimes encourage or even insist on further evaluation. You can also try to enlist others in the older person’s social circle, to see if it’s possible to persuade the person to give up the keys.
As a last resort, if you have evidence that driving poses a substantial risk of harm to the older person and to other motorists and pedestrians, it’s reasonable to conclude that this outweighs the harm of taking a person’s keys before legal incapacity is confirmed. Such evidence might be past crashes or near-misses, combined with other evidence that the person has reached a state of moderate or worse dementia, such as frequently getting lost or appearing confused.
Of note, the Alzheimer’s Association’s position statement on driving and dementia states:
“Driving privileges must be withheld when the individual poses a serious risk to self or others. Interventions to prevent driving in individuals who lack insight include physician oral or written recommendations, taking the keys, removing the car, changing the locks, filing down the ignition key, and revoking the license.”
Is neuropsychological testing required to assess capacity?
Not necessarily. Clinicians are usually allowed to use “clinical judgment” in conducting their evaluations and reaching their conclusions.
Especially if a person has a dementia that is at a moderate or severe stage, it is often possible for a generalist physician to provide evidence of a lack of capacity, simply by interviewing the person, documenting responses that demonstrate a lack of needed understanding or reasoning, documenting evidence from family members and other observers, and providing evidence that the medical cause of the thinking problems is not likely to improve.
However, if a person’s cognitive impairments are mild, subtle, or focused in certain cognitive domains, then neuropsychological testing is often very useful. Neuropsychological testing can also be used if a preliminary clinical evaluation by a physician yields borderline or uncertain results.
Resources & References to Help You Understand Capacity
Written for the lay public:
- Legal Planning (Alzheimer’s Association)
- Assisting a Person with Dementia in Planning for the Future (Alzheimer’s Association)
- Driving and Dementia (Alzheimer’s Association)
Written for professionals:
- Assessment of Capacity in Older Adults (American Bar Association/American Psychological Association)
- Includes links to free comprehensive guides for clinicians, lawyers, and judges
- Understanding Legal Capacity and Ethics (Practice Guide, National Center on Law & Elder Rights)
- Overview of Guardianship and Alternatives to Guardianship (National Center on Law & Elder Rights)
- Assessment of Capacity in an Aging Society (PubMedCentral)
- Clinical and Ethical Aspects of Financial Capacity in Dementia: A Commentary (PubMedCentral)
Note: I am not an attorney or a psychologist. This article is based on my review of the above resources, plus my own clinical experiences and conversations with attorneys and other experts.
This article was first published in May 2016 and was last updated in June of 2022.
JJ says
Unfortunately most of the provided links are broken.
Nicole Didyk, MD says
Thanks so much for letting us know! I’ve asked the tech team to go through the article, and the links have been fixed!
Brian says
so heres my problem, my sister has control of a trust fund left from my grandmother for the well being of my mother, she gets the remaining money when my mother dies,
my mother is no longer allowed to live on her own because of her mental capacity,
but she is refusing to take her insulin, refusing meals, sneaking candy, refusing to shower,
and threatening to urinate on the furniture,
she needs to be put in a home, but if i do that, my sister will just pull her back out
(when we first got the news from the doctor and rehab facility that she couldnt be
left alone, my sister immediately dropped her back off at her apartment alone because
she didnt want to deal with her),
she currently has her blocked so my mother has to go through her ex husband (my father)
to request anything (he has nothing to do with the situation other then hes the only one not blocked)
even when mother was living with sister, she had such large problems i voiced my concern,
my sister replied all was fine,
next day mother was in hospital with bloodsugar in the 600’s for long periods of time
(now diagnosed with not just diabetes 2 but also that thing that effects her mind from it)
so i drove up to oklahoma and took possession of mother to care for her, but as
previously stated this task is not reasonable, what can i do? i dont want my mother harmed,
and if my sister gets her back i know shell be dead in a year, what can i do?
Brian says
ontop of that my sister dumped all responsibility for her care into my lap, with no information about doctors medicine or care, then blocked me
Nicole Didyk, MD says
That sounds like such a heart-wrenching situation and I’m sorry your family is going through that. It can be very complicated caring for an older parent whne siblings don’t see eye to eye.
I would strongly recommend Dr. K’s new book: When Your Older Parent Starts Needing Help: a geriatrician’s step-by-step guide to memory loss, resistance, safety worries, and more. You can find out more about it here. There are specific parts of the book that can be used to guide interactions with difficult siblings.
I don’t have a legal background, but I wonder if a guardianship would be something that would be appropriate in a case like yours. If an aging parent isn’t capable, a child could petition for guardianship, and make decisions about shelter for the parent. A sibling could challenge this, but there would likely be a hearing where a person could share all of the information about the parent’s health and wellbeing.
There’s no easy way to get through a dilemma like the one you’re facing, but I’m glad to hear that your mom is safe with you for now. I wish you the best.
David Mathews III says
The problem I have is one parent (Dad) is having continence probs and Mom is late on the bills and often lashes out at me for what I hope is temporary schizophrenia talking to myself. I have one fellow from a recent job here and , well, im not sure about him but Mom is infatuated at 81 with his worky worky stuff, but it does cause confusion and derision in the house. See Mom forgets alot as the onset of dementia, and has an explosive temper from what I believe we all 3 have ( parasite rage). Gas lighting, its very possible and because of the ex employer having money she has messed up my Doctors visits negating parasites, no problem , but why wont she quit sending her ones in her care to glory, and help people like she promised us is the rub.
Torment is the word, Dad and I have to watch what we say around Mom she dissects and cuts at us about anything, she is so outta line its hopeless and dangerous with her persecution complex.
Nicole Didyk, MD says
That sounds like a difficult situation for sure, although I’m not sure I followed all of that.
You and your dad definitely need support if your mom is living with dementia, and the Alzheimer’s Association can be a great resource. They can give you some guidance on how to navigate the behavior changes you’re seeing.
It might be helpful to get an assessment by a Geriatrician or Geriatric Psychiatrist as well.
Dr. K has recently published a book called: “When Your Aging Parent Needs Help: a geriatrician’s step-by-step guide to memory loss, resistance, safety worries, and more”. This is a practical guide to how to start helping an aging parent, even when you don’t know where to start. You can learn more here. The book can help you to set small goals and make progress towards helping your mom.
Mike says
I have a question. My fiance was 35 when she had a stroke. In the paperwork the doctors marked that she is unable to make her own decisions. Would that be all decisions? I’m asking because only a couple months after her stroke, her attorney had her enter a guilty plea on a case and she doesnt even understand what is going on. She can hardly follow a conversation let alone understand a court proceeding.
Nicole Didyk, MD says
That must be a frightening situation.
In my experience, it’s rare for someone to be globally incapable, that is not competent to make any decisions for themselves. In a legal case, it would probably be up to the court to decide if a person is capable of entering a plea for themselves or to take advice from a lawyer without some accommodation. It would likely be vital that the court be aware of the person’s health issues if they could affect the proceedings. I would have a dialogue with the lawyer to make sure they understand the client’s consition.
Sarah says
How do we approach a situation where one sibling has taken power of attorney, not given capable mom a say in moving her to assisted living, and who (siblings) have all her financial and legal and personal document and belongings at their house. Do we have to bring suit to challenge and watch over what they do with her money and belongings? She’s competent.
Nicole Didyk, MD says
I’m not a lawyer, but it seems to me that a capable person could not be forced to move, even if someone has a durable power of attorney for personal care. If your mom doesn’t agree to move to assisted living, she can move out, if she’s competent. If someone challenges her capacity and applies for a guardianship of her, there would probably be a hearing.
The laws around capacity vary depending on your geographic region, so getting legal advice from someone in your jurisdiction is a good idea. I’m sorry your family is struggling with this and I hope you can get a resolution soon.
Vanessa says
Hi:
I have a brother with guilian barret syndrome , which has him incapacitated to move from the head down , he also cant talk since he hs a tracheotomy , but the doctor says he understands everything and he can comunicate by reading his lips , he can say yes and no , or can communicate by other means like using a board and stuff like that , my question is this , his son has taken the desicion to not let any other family member talk to him in face time or even ask how he is doing , not even to my own mother , I think this is a violation of his rights , because i think if someone go and ask him if he wants to speak to his mother of course he is going to say yes , is like he is being kidnapped by his oen son and the hospital . What can we do in this situation ?? We only want to see him and see how he is doing .
Vanessa says
I forgot to say he is a patient in the san bernardino hospital .
Nicole Didyk, MD says
That sounds very frustrating. It’s hard to know what’s going on, whether your brother has requested a break from talking to other family members, or your nephew is making this change of his own accord. If your brother is in the hospital, it might be reasonable to share this information with the hospital staff and someone there (like a social worker) can check in with your brother to see if he needs help connecting with you or your mom.
CiCi says
I’ve gleaned much from your blog posts, TY. I took one piece of advice and contacted my 85 year-old mother’s (new, never before seen) PCP/Geriatrician to _give_ them information about her. She has been having paranoid delusions, which are causing her to make bad decisions as a result. I stressed that I was only giving info. and that it be held in confidence as it was a sensitive subject with my mother and not one she’d bring up; and, also to protect the trust relationship with her. I asked them to a.) evaluate her for dementia/LB; b.) address a months-long untreated UTI; b.) explain to her about assigning a health surrogate so that I could legally discuss her condition/treatment with healthcare providers.
Spoke with my mother about the visit. She reported that first thing out of the doctor’s mouth was: “Tell your daughter not to call here. It is a HIPPA violation.” I had to backpeddle about why I called, but the damage has been done.
Not only did he not even evaluate her*, but now he has broken her trust in me. A case worker that has been assigned her for 2 weeks (only) told me that my mother told her that she had no family (she has me and an abusive/estranged son). They knew better and asked about her daughter. Her reply was that I was trying to have her commited and said that I hope she dies.
The opposite is true, but where does this leave me? The people assigned to her are making incorrect/incomplete judgements about her, and I’m feeling helpless. I live out of state and cannot move to where she is. She refuses to move from ‘her home’.
Nicole Didyk, MD says
I’m so sorry to hear about your experience – it must be frustrating and stressful.
First of all, I usually advise being careful when one is only getting one side of the story (for example, in this case: your mother’s interpretation of what happened) and the truth might be something different than what she is relating to you. I’m not aware that you sharing information would violate HIPAA, so that is unusual. It might be worth verifying that with the provider’s staff.
It is great that your mom is linked with this provider and has a case worker assigned to her, though, and it sounds like that case worker is able to share information with you to some extent. If that worker has some Geriatrics experience, they are probably aware that information gathering with older adults is a lengthy process, that involves getting data from multiple sources.
The goals that you list are all reasonable, but might be more than could be covered in a single encounter, and might be different to your mother’s goals. It’s a journey.
I would recommend looking into getting Dr. Kernisan’s book, co-authored by Paula Spencer Scott. It’s entitled: “When Your Aging Parent Needs Help: A Geriatrician’s Step-by-Step Guide to Memory Loss, Resistance, Safety Worries, & More” , and it really is a step-by-step handbook that has very practical information about where you can go from here. You can watch my interview with Dr. Kernisan here. I hope you find it helpful, and thanks for sharing your comments!
Matt says
My father is in his 90s and has been diagnosed with dementia for quite some time now.
I am the power of attorney for him and began living with him 5 years ago. In his will and in years before the onset of dementia he had wanted his home to go to my family and I.
By moving in and supporting his needs he progressively has felt as if we are taking away his freedoms and taking over his home and this has turned into him now distrusting our intentions and our concerns for him. He has gone behind our backs and with the help of a step child (who would actually benefit from this change) is making an effort to have his will changed.
We have seen similar lacks of trust with his doctors recently. He denies medical diagnoses that are given to him.
He no longer drives, cannot make payments to debtors, or keep track of writing checks to family as gifts, he cannot remember grandchildren’s names, or if he took the morning medicine, or eaten a meal. I of course handle all these for him as his son and caregiver.
Many things confuse him, like where water is coming from in his backyard during a rain storm, or how did a spill get on his floor, or if it’s the sunlight that is illuminating the room, or the lamp.
He has exhibited sundowning this year a few times and we will need to place a motion detector in the house now to make sure he doesn’t harm himself when we are asleep.
His logic when he first signed the will was that our family had struggled the most, we have a young child with a mental disability, and that we have taken care of and been there for him and his wife the most often. Several of his other children have homes, are comfortably retired, employed, or receiving benefits, and have self-sufficient healthy adult children.
He recently was told the value of his home in a real estate flyer and it caught him by surprise. His value scale has stopped many years ago, still thinking that anything above $.10 for a cup of coffee is bank robbery. So giving anyone a house away at this modern price now seemed preposterous to him.
When I bring up what the plans were that were written in both his will and his deceased wife’s, he tells me those were never the plans and that it was ever written like that.
My wife and I are at wits end. When we bring up the topic and express our sorrow he becomes very angry with us, only to seem calm and friendly minutes later. I am clearly depressed and saddened every waking minute and he doesn’t recognize it on my face and by my demeanor at all.
We know if we question his competence that could spur him to write us out completely, but we also don’t want to regret not doing anything.
Is there a subtle way to deliver our concerns to his doctors?
What is the likelihood we’d have to take this to court even with doctors in agreement?
He is moving fast on getting all this completed, would we be able to make a case after the documents are signed?
Also, I am his transportation and he will have to rely on me to get him to the lawyers office. Do I pull the lawyer aside and tell him that I have second thoughts about my father’s judgement or by allowing him to go there under his free will and saying nothing am I allowing him to do this and accepting his competence?
Nicole Didyk, MD says
I’m so sorry to hear about this and I can understand your anguish in this situation.
The mental capacity to change a will is called “testamentary capacity” , and I found some information about the capacity needed to make a will in your state, here on the California Law website: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6100.5&lawCode=PROB
My understanding is that the lawyer who is drawing up the will should ensure that the person is capable to do so. This lawyer may benefit from knowing about the medical condition of the person who is changing the will, i.e that the person has dementia, whether they are incapable in other domains of life (like managing finances, managing medications, driving and so on). A person who is making a will also has to have an understanding of their assets, so that if a person doesn’t know the approximate value of their home or other assets, this could point to incapacity as well.
In such a situation, I would not advise the subtle approach. I would advise the family member to write a letter to the doctor, and perhaps to the lawyer as well, outlining the concerns as you have in this comment, and consider also giving information verbally to the lawyer.
Unfortunately, these situations are not uncommon and it’s often necessary for the parties to get legal representation, and things end up in court. That is almost always a very painful and costly way to go, so any action that could settle things down without going that route would be better. As a Geriatrician, I am often asked to weigh in on financial capacity, or capacity in general, so getting a consultation with a geriatrics time may be a good idea.
I hope you can find some peace and I wish you the best.
Tom Lindquist says
Hi. Thanks for the useful information. My 92 year old Mom who was living alone got Covid. She went to the hospital but hospital sent here home . My sister in law who has Power of Attorney has stuck her in a nursing home and wont let her go back home and is in control of all the finances. The only document she has is a social worker said Mom might have dementia and a small town doctor who saw her when she had the virus said there might be some mental challenges. everytime I have talked to Mom she was very coherent . Can my sisterlaw do this. Mom owns her own home so accommodations or home care could be made. Thanks so much
Nicole Didyk, MD says
I’m so sorry to hear about your mom and I hope she gets better soon.
Usually, a person with power of attorney can only act if the older adult has been found to lack capacity. If a person’s capacity were assessed when they were in a delirium (a sudden worsening of alertness, thinking and concentration that fluctuates, and is due to a medical issue), the attorney may need to step in, but if the delirium gets better, the capacity may return.
If a capable older adult disagrees with the actions of their attorney, they can take steps to regain control. I would advise that person to get legal advice about how to move forward.
Julia Summers says
Question: I am helping a family member with her problem. She and exhusband purchased property and a home together about 13 years ago. He is now in nursing home with dementia and she is 73 and needs to sell the home to move near her children in another state due to her health. There is no POA nor will for the exhusband who isnt able to sign or witness anything due to his state of dementia. How does she sell her property without him able to sign off on transaction? What happens regarding the nursing home,
do they take the home or the profits? Help
Nicole Didyk, MD says
Hi Julia. I don’t know enough to authoritatively answer this question, but I would start by looking at the terms of the divorce, if there was one, or did they but this home after they were apart? A lawyer will probably be needed to sort this out, but an even split of the proceeds seems like the most likely scenario to me.