In short, mental competence relates to a person’s legal capacity to understand and to make rational decisions. Unfortunately, many families will find this a bone of contention among them. Everyone in the family thinks that they know best and are also “conspiracy theorists” when it comes to the motives of their immediate family, or of long time friends or employees of the affected person. Elder law can be complicated and in most cases, emotionally charged.The most common causes of a person being deemed mentally incompetent will be the result of dementia, a stroke or Alzheimer’s disease. It is amazingly difficult and heartbreaking to watch a once vital and mentally astute person lose those areas of their personality that make them so special. Emotions run high as a loved one declines and unfortunately this can create further divisions within a family at a time when the family should be coming together to do what is best. This is the time to let ego and past grievances go and come together as a family in order to do what is necessary to help the afflicted loved one. Yes, it’s easier said than done and when families, or those who care deeply about one’s health and well-being cannot come to an agreement, the courts must step in.In an emergency situation, as in a sudden stroke, guardianship can be obtained in a day or two. In most cases though, the process can take anywhere from a month to several months and can be costly, ridiculously inconvenient and the delay can leave your love one in an untenable situation. The court will appoint an attorney to represent the interests of the disabled person’s assets and their income, if there is any. At this point in time the family will be forced to make all decisions through this attorney, and in very difficult situations, the family may be taken out of the equation completely. That pretty much depends upon how easy or how hard the family makes it on the attorney and if he or she feels that the family has his client’s interest at heart or has much more selfish motives.A lot of this can be avoided by seniors being proactive and taking the time to have a durable general power-of-attorney in place before becoming disabled. A lot more of the hurt feelings can be avoided if the elder person taking care of business will communicate openly and honestly with family members about his or her decisions and why those decisions are being made. This is not normally a personality contest, though the elder will usually prefer someone he or she has a close connection to. It should come down to any number of pertinent factors, like the close geographical proximity, the existing financial situation of the person the elder is considering, the time and inconvenience that it will take to “take care of affairs” and the intelligence of the person being considered. For example, your Dad and you may have a special connection, but your sister is much more financially savvy or responsible when it comes to financial matters. Ego has to take a back seat and the easier the family makes it on the senior, the easier it will be to make decisions that will insure his or her estate is handled without undue stress. And…the more communicative the senior is, the easier it will be on the family all the way around.So, as a person approaching your golden years, you may want to take some time to seriously weigh where your estate lies and what will happen if something were to happen to you, your spouse or both of you. As a family member of someone approaching their golden years, you may want to start this conversation. Stuff happens and having a “it can’t happen to me mentality” may leave you or your loved one’s estate in the hands of an unknown attorney and your family at odds with each other, a less than desirable situation.Being proactive about the future is the best way to insure your family stays together and that you and your assets are properly taken care of in the event that you need it. The rule of thumb here is: Prepare for the worst, but hope or pray for the best. You can, of course, prepare your own power-of-attorney with online forms, having them notarized, but it is generally recommended that you pay the price of an attorney to prepare this document. Attorneys that specialize in elder law will know the right questions to ask and will think of things that you may not have taken into consideration. It is well worth the minimal cost that is usually involved. In fact, your local senior center may have the names of those who will do this kind of work pro-bono or for a reduced fee. It is definitely worth looking into.
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