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Why a Letter of Competency Should Be Part of Every Senior’s Legal File

Dementia and other health issues that affect one’s mental capacity are devastating in many ways, but they can also complicate the basic legal planning that is recommended for all seniors. Countless members of the AgingCare Caregiver Forum have shared stories about bitter disputes between family members over whether an aging loved one’s will, powers of attorney and other legal documents were valid.

The perfect storm of questionable mental capacity and preparing for the future can breed suspicion and jealousy, often pitting family members against one another. However, adding one very simple step to a senior’s legal planning process can reduce the potential for unnecessary stress and familial discord down the road.

How a Letter of Competency Works

Encouraging a loved one to obtain a letter of competency at the time their will, power of attorney forms, advance directive and any other legal documents are drafted and signed will help dispel any notions that these documents were created while they lacked the mental capacity to make medical, financial and legal decisions.

While attorneys are prohibited from helping incompetent individuals to change or create legal documents, the legal definition of incompetence differs slightly from the medical definition of mental capacity. Ensuring that a person is both legally and medically capable of making decisions about their health care, finances and estate should eliminate any doubt about the validity of their documentation.

How to Obtain a Letter of Competency

Most people request this letter from a primary care physician who has seen the patient over the course of several years and is familiar with any changes in their baseline mental and physical health. In some cases, though, obtaining this letter from a doctor who specializes in mental health and cognition, such as a psychiatrist or a neurologist, is a good idea.

For example, if your mother is already experiencing mild memory loss and has not had a primary care doctor for a decade, then a complete mental evaluation conducted by a specialist would be more credible compared to a mini-mental exam conducted by a new family doctor who is seeing her for the first time.

The attorney you’re working with should be able to recommend which of a loved one’s physicians would be able to provide the most accurate statement.

What a Letter of Competency Should Include

A generic letter from a doctor attesting to a patient’s mental capacity should be printed on the physician’s letterhead and include the following fundamental pieces of information:

  • Patient’s name
  • Patient’s date of birth
  • Date the patient-physician relationship was established
  • Physician’s statement testifying to the patient’s ability or inability to make independent decisions regarding healthcare, finances and legal matters
  • The patient’s relevant medical diagnoses (e.g. Alzheimer’s disease, stroke, mental illness, developmental delay, etc.)
  • Date of diagnosis for each relevant medical issue
  • Physician’s contact information

While the above pieces of information are typically included in a basic statement of mental capacity, it is wise to work with an attorney to determine if any other facts or supporting evidence should be included. File the original letter(s) of competency away with the corresponding legal documentation in a safe place, such as a locked file cabinet, a safe deposit box or with an attorney. It’s wise to have the physician keep a copy in the patient’s medical file as well.

Documentation is Key

It is impossible to predict whether a sibling, grandchild, stepparent or other family member may contest the validity of an aging loved one’s legal documentation, but it happens all the time. Some of these cases even end up in expensive and lengthy guardianship proceedings. Others result in lawsuits where a loved one’s will is contested. These squabbles can divide families and destroy relationships.

It may seem excessive to seek additional proof of mental capacity when changing or creating any legal documents, but it’s better to be safe than sorry. The time and energy involved in attending a doctor’s appointment and obtaining a letter of competency is minimal compared to the emotional turmoil and legal fees involved in a lawsuit or an investigation conducted by Adult Protective Services (APS).

It isn’t easy but encouraging your loved one to make sound legal preparations, acting in their best interest, and taking every precaution to carefully document changes in their health and financial status will ensure that your caregiving journey goes as smoothly as possible.

Source: AgingCare

Can a Caregiver Change a Loved One’s Power of Attorney?

While it may seem like an unusual scenario, there are a few legitimate reasons why family members may want to change an aging loved one’s power of attorney designation. Of course, changes are easy to make if the principal is still mentally competent and wishes to name someone else (known as the agent) to act on their behalf. However, things can get complicated when a loved one is incapacitated and family members believe that a change is in order.

There are a couple of different ways to go about this, but it depends on how a person’s POA document is written and what the desired outcome is. Two of the most common scenarios are when a caregiver no longer wishes to serve as POA for a loved one and when a family member wants to challenge the legality of the current POA’s actions.

 What to Do if You Want to Resign as Power of Attorney

Any caregiver will tell you that this responsibility is not for the faint of heart. There are many reasons why an agent may need or want to step down as POA. Perhaps they have moved out of state and are too far away to effectively manage a loved one’s medical and financial affairs. In some cases, the principal may be abusive and the agent must resign in order to safeguard their own physical and mental health. Acting as a person’s agent is a serious legal responsibility and, regardless of the reason, it is important for an agent to resign if they feel they cannot carry out their duties.

To resign, an agent must compose a formal letter notifying the principal, any co-agents and all parties with which the original POA has been filed, such as banks, elder care providers, etc. While each state has different rules for relinquishing POA, taking formal steps to notify all involved parties offers the most protection from any legal issues. It’s best to sign the resignation letter before a notary and then send copies of it via certified mail with return receipt requested. In this letter, you’ll want to include your full name, the principal’s full name, the date that the original POA document was signed and the date you will terminate your position as an agent. An attorney can help you draft this document easily and at minimal expense if you need help.

Can an Agent Give POA to Someone Else?

The process of resigning as an agent is not particularly difficult, but it can have serious implications for the principal. Who will assume the agent’s responsibilities? If a successor is listed on the original power of attorney document, then he or she will become the new acting agent. It would be wise to cancel the original POA and have a new document drawn up, directly naming the successor as the new agent. However, this is only possible in cases where the principal is still of sound mind. POA can be difficult to “prove” and have accepted by certain entities like banks, so a simple and straightforward document is ideal.

Naming a successor agent (or two) is recommended. It gives the principal a legal back-up plan in case the original agent resigns, becomes incompetent themselves or passes away. If no successor is listed on the original POA document and the principal is already incapacitated, then there are few options left. Unless the document grants the original agent the specific ability to delegate powers to another individual, the general rule is that he/she may not do so. Guardianship is the only other option for passing on this responsibility.

How Guardianship Factors Into Resigning POA

Continuing with the scenario above, an interested family member or friend would have to petition the court for guardianship of the incompetent principal to ensure that their medical and financial affairs continue to be managed responsibly after the original agent resigns. This is a lengthy and expensive process that should only be considered as a last resort, but sometimes there is no other choice.

If no other individuals are interested in or capable of serving in this role, then the principal may wind up as a ward of the state and under public guardianship. A concerned party, such as a physician or Adult Protection Services (APS), may file a referral to a local public guardianship service provider indicating that the indigent and/or incompetent adult requires assistance making medical, financial, and/or daily living decisions. Information is collected about the incapacitated individual and a hearing is conducted to determine if they meet the legal guidelines for public guardianship and rule out the possibility of another suitable person serving as their private guardian. Guardianship in any case is not ideal. It is costly and time consuming and it strips wards of their independence and many personal rights. However, it is sometimes necessary to protect vulnerable adults from neglect and abuse.

Contesting a Power of Attorney

Guardianship can also play a significant role when a person wishes to challenge a current POA. This may be appropriate if you know or suspect that an agent has abused their authority and you wish to take over their duties. Again, going to court to prove that a POA document is invalid or that an agent has mismanaged a principal’s funds or neglected their needs can be a long, expensive and emotional process. These suspicions must be proven in court and, if the agent is removed and the principal is deemed incompetent, then a petition for guardianship will also have to be filed.

It is crucial to understand how power of attorney documents work and carefully consider who to appoint as an agent. Guardianship is an important method of protecting vulnerable seniors, but it should only be used as a last resort. Ultimately, every caregiver’s focus should be on meeting their loved one’s needs and safeguarding their wellbeing. It is imperative to take action if any agent, whether it is yourself or someone else, is unable to handle this responsibility.

Source: AgingCare.com