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Elder Competency – When Can You Make Your Own Decisions?

by Laurie Israel, Esq.

As we and our loved ones grow older, we start seeing and experiencing situations of decline – physical and mental. Yes, the decline is accompanied with the peace of mind and contentment that comes from years of experience. But the physical problems every older person has needs to be dealt with on an ongoing basis.

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Mental decline is something else. It interferes with your quality of life, your ability to handle the details pertaining to day-to-day living – shopping and making food, paying bills, making sure your retirement income and assets are safe (difficult in these times!), and are being used for your care, and making sure you see your doctor and take your pills. When mental decline is severe, another person needs to act for you, either through a health care proxy, a power of attorney, or a court guardianship or conservatorship proceeding. Mental decline so severe as to be deemed incompetency needs to be determined as a legal and practical matter, so that outside care and supervision for the sufferer can be put into place.

Competency is legal term that means that a person has the soundness of mind and mental capacity to be qualified to act legally for him or herself. Capacity means the ability to receive, process, and perform mentally. Both terms relate to an intelligent understanding and perception of one’s options and one’s actions.

We lawyers know legal competency when we see it. People entering into agreements and contracts, and writing wills and other estate planning documents must be competent in order for the documents to be legally binding. Therefore, lawyers need to constantly evaluate clients’ competency (and incompetency) in assessing clients’ ability to think about, formulate, and execute, documents. Another way to articulate legal competency is when a person is able to handle his or her financial affairs and make rational and considered decisions about one’s own health care and medical treatment.

When working with a client, we are looking for several factors: (1) whether the client is able to articulate the reasons behind his or her decisions consistent with the client’s own identified goals; (2) the degree of alertness of client’s state of mind and ability to understand relevant information; (3) whether the client is able to understand the nature of his/her own situation and the consequences of his/her decisions; and (4) whether the client’s decisions are consistent with the client’s lifetime commitments and basic values. Michael Schuster, Representing Older Persons with Diminished Capacity – Ethical Considerations, 263 Practising Law Institute/ Estate Planning & Admin. 339 (May, 1998).

This all boils down to whether the client understands the alternatives available, the person can make a decision based on the facts and appreciate the consequences of his/her decision.

Competency is not an “all or nothing” attribute. A person might not be able to balance his checkbook, but can address medical decisions or make a last will and testament. Some people are competent to do some things and not competent to do others. Some people are bad at handling their own money, but are very sure as to whom they want to have their money should they have any at death.

Diminished capacity is really a sliding scale between full competency and something much less. Sometimes a person might be competent one day and lack competence the next day. We are taught as lawyers that a person who is competent when he executes a last will might be incompetent two hours later, but the will he made when competent will be legally binding. In cases of diminished capacity, we lawyers are careful to provide evidence in the file of a person’s competence to execute the document, such as writing down in-office discussions with the client in the client’s file.

The client, of course, needs to know what he or she is signing. This means that when discussing the drafting and review of various legal documents, the client must understand the need for a particular document and what the document does.

There are slightly different standards with important differences in competency for different types of legal documents. Testamentary capacity for executing wills requires knowing the objects of one’s bounty, the property held, and the disposition of the property one makes in one’s last will. It’s actually a lesser extent than that which is required to enter into a contract. To appoint a health care agent or a future guardian, a lesser standard applies – you need to know whom you wish to act for you if you cannot act for yourself.

To make a gift, you must understand the nature and effect of your donation. To grant a deed and enter into a contract (including a divorce agreement), you must be able handle your financial affairs and be able transact business. All of these are subject to a sliding scale of competency and need to be evaluated on a case-by-case basis at the time you are working with the client.

Determining mental competency is not an exact science, but is something lawyers must do. Because lawyers are concerned about competence when a client faces financial matters and decisions (and because we deal with client finances and money issues primarily), we are a bit mystified when the determination of whether someone has legal competence to handle business matters is relegated to physicians and psychologists, but that is the state of the law in Massachusetts.

The Massachusetts Uniform Probate Code (MUPC) requires a medical certificate in order to have a guardian or conservator appointed to make decisions for an incapacitated person. MUPC Section 5-303 and 5-404. The medical certificate must be completed by a registered physician, a licensed psychologist, or a certified psychiatrist nurse clinical specialist.

There are questions in the form of fill-in-the-boxes regarding overall impairment (alertness, memory, emotional and psychiatric functioning (i.e., ranging from “No” impairment to “Severe” impairment). There is a question as to how these impairments cause the individual to “have an inability to receive and evaluate information or make or communicate decisions.” This standard seems to be drawn with a much cruder brush than the standards of competency applied on a daily basis by lawyers doing their work with clients, because we test our clients with the actual work at hand that we are doing with the client and not in some abstract way.

If you or anyone you know is having cognitive impairment that is causing problems, perhaps the person can put things into place for him or herself using his/her own decision-making before the time for action has passed and legal competency is no longer present.

Copyright ©2010 Laurie Israel.


Laurie Israel is founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is currently on the board of directors of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on mediation to stay married (marital mediation), collaborative practice, marriage, divorce, and pre- and post-nuptial agreements. She is a frequent presenter at professional conferences.

Her websites are: www.ivkdlaw.com, www.yourfamilymatterslawblog.com and www.MediationToStayMarried.com.