Written by attorney Robert C Graham

Is My Mother Competent? That is a difficult question with many answers.

When a parent starts acting unusually, you first wonder if they are being forgetful or whether they are incompetent or becoming incompetent.

First, let's address competency. That term in legal jargon means does the person have the ability to make their own decisions or take care of themselves as to financial and health decisions.

Sometimes, a child may just not like a decision that has been made, but a parent can still be competent. For instance, if your mother wants to sell her house and live in an apartment. A child may not like that idea, but the parent is free to make it if they are competent.

Continually, I see children and professionals run into guardianship court to get authority over a parent, simply because the child doesn't like the decisions a parent is making. This really only becomes a concern if there is going to be harm done or there is no rational basis for the decision.

If the parent wants to sell the house to give the money to his or her favorite charity, that may be either completely insane or completely competent. If the estate of the parent is worth $5 million and there are two other houses to live in, there might be a logical basis, but if the charity is the local church down the corner with only one pastor and two members, you would be right to intervene.

But what if your parent had attended that same little church for 20 years? Again, then the question gets muddy.

There are two intereting issues relating to competency. First, there is the issue of whether a person has the medical ability and evaluation to be determined competent, but frequently, courts and attorneys miss the fact that there is an additional standard to think about that doesn't involve doctors at all.

There is the old -- very old -- standard of teetamentary capacity. In other words, does the person have the ability to know and recognize his children and immediate family, does the person have the ability to understand what assets he or she has and then does that person have the ability to determine where he or she wants those assets to go to upon death. It is a very, very, very low standard. The government doesn't care where the property goes as long as it goes somewhere. If the incompetent person has testamentary capacity, then they can still direct where they want all their assets to go -- yes, even if they are incompetent and otherwise unable to take care of themselves. (Don't blame the messenger).

This is very scary stuff. Even the lawyers and judges scream and yell about what shoudl be done. The law is generally not well-settled.

So what does one do? First, ask your doctor to recommend a neurologist specializing in the care of the elderly. Just getting a doctor to say something about mental health isn't going to do the trick. Maybe it would ten years ago, but not in today's society. The courts and attorneys are much smarter than that now.

Then, have an attorney do an independent evaluation to determine testamentary capacity. Testamentary capaicty is a LEGAL STANDARD NOT A MEDICAL STANDARD. As such, the attorneys opinion is more important. Should any attorney do? No way. Get an estate planning and guardianship attorney who has been doing the work for decades and you will have someone the court will rely upon.

If someone tries to tell you that a doctor understands testamentary capacity -- well that better be one special doctor. Testamentary capacity is a legal standard. A doctor COULD become familiar with the standard, but these are few and far between. They would have to be court appointed many, many times to get to this level.

So ideally, you would determine incompetency with your medical doctor and a social worker. These folks would determine if your parents have enough mental capacity and ability to care for themselves. Once incompetency is determined, then you need to turn to testamentary capacity.

There is much more to this, so go to see a qualified, skilled and very experienced attorney in this area. They will immediately put you on the right track.

Additional resources provided by the author

National Guardianship Association; National Academy of Elder Law Attorneys

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