It is incredibly difficult to see someone we love lose the mental strength that the person used to raise us.
Recognizing a family member’s or our own gradual loss of capacity to make decisions (often starting with less ability to make complex decisions) is valuable. Seldom do people immediately go from completely mentally competent to completely mentally incompetent. An overnight change in mental competency can happen, but instant changes in mental health conditions are not very common.
As a result, we often see that our loved one may have a “good day” or a “bad day” mentally as he or she experiences an overall decline in mental health. That inconsistency in the decline of cognitive functions (due to age, dementia or other medical reasons) can allow us to be positioned to care for that person during the impending bad days.
Illustratively, if someone has not signed powers of attorney for healthcare or finances, a “good day” may present an opportunity for the person to sign those powers of attorney. Obviously, a person must be competent at the time that the person signs the powers of attorney in order for the powers of attorney to be valid, enforceable and effective.
For example, your mom may be experiencing some mild, early-onset dementia. Sometimes, for an hour or a day, mom is as mentally sharp as she was 40 years ago. However, at other times for a few hours or a day, mom is clearly without her full mental faculties.
If mom is to sign a power of attorney that will be legally effective, we need to determine two things at the time she signs. First, is this one of mom’s good times? Second, even if it is a good time, is mom’s good time “good enough” for her to be competent enough to sign her documents?
Attorneys and medical professionals can help to answer these two questions. And, if there are doubts or concerns concerning competency as to a certain point in time, it is essential that one or more additional, independent (non-family member) witnesses participate in the signing experience and document their observations in writing immediately following the signing.
What happens if there is a valid power of attorney, but at a later time when mom is clearly “not thinking straight,” mom wants to revoke the power of attorney or otherwise tries to supersede the decisions of the agents named in the power of attorney?
Depending upon the circumstances, financial or medical professionals may identify mom’s mental inabilities and will recognize and acknowledge mom’s requests while only actually following the instructions of mom’s agents identified in the power of attorney.
In other instances, it might be necessary for someone to apply to become a guardian over mom. Guardianship over mom requires that mom be found to be mentally incompetent by a medical professional and as affirmed by the local probate court. In challenging situations like this, a guardianship might be necessary even though powers of attorney were intended to do the job.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.