The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Procrastination and denial are common afflictions when confronting death and disability. Sometimes we wait too long.

"He has his good days and he has his bad days; and this is one of his bad days," said the USD Senior Helpline caller (1-800-747-1895; mmyers@usd.edu), who wanted to know what was required to have her 90-year-old father execute a durable power of attorney.

He was not lucid. He was physically incapable of signing a document; and, he was, for the time being, mentally incapacitated.

She was calling from his nursing home. "Do we have to take him somewhere to have it done?" she asked. His condition had deteriorated to a point where a trip to an attorney's office would have been exceptionally difficult.

"We are visiting from California and would like to get things taken care of before we return," she advised.

Lawyers, unlike physicians, still make "house calls," I advised, including visits to a nursing home. The issue confronting this family, however, was "capacity," legally defined as "The ability to understand the nature and effects of one's acts."

I suggested that she consult with the nursing staff, review her father's medical chart, and obtain an assessment of her father's mental condition. "You should determine whether his medications are interfering with his ability to think and discern," I said.

"Try to obtain a written statement confirming his mental capacity," I advised. Such documentation substantiates capacity and serves to counter legal challenges.

I informed the caller that if her father does not have another "good day" and does not regain mental capacity, she should ask the attorney to petition for a guardianship. The power of attorney is less costly, can be executed at the nursing home, and takes effect immediately.

A guardianship requires notice, a hearing, and consumes resources. In this case the family may have waited too long. Preparing for the inevitable is best accomplished when the "good days" are back-to-back. When the "bad days" kick in, it may be too late for the execution of a power of attorney.

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