Judd Matsunaga, Esq.
Not as “sharp” as you once were? Me, too. Perhaps it’s all the prescription medications I take that don’t mix well with my brain. But according to the World Health Organization, psychological conditions such as dementia and depression affect 15 percent of people ages 60 and over, and that percentage is expected to rise as the global population continues to age.
An individual’s ability to comprehend what is going on is often referred to as one’s mental capacity. Legally, “capacity” is the ability to make and communicate an informed choice. An “informed choice” is made based on understanding the options and the impact of different options.
Capacity is often used in determining whether someone is sufficiently competent to enter into a binding legal agreement. In the area of estate planning, the term “capacity” means the ability to manage your own affairs and make important decisions on your own. Legal capacity is a necessity in order to execute various documents such as wills, trusts and power of attorneys.
In some cases, incapacity is only temporary, such as when the condition causing diminished capacity has been cured or resolved.
There are a number of medical conditions such as Alzheimer’s disease, psychosis and dementia that are recognized as resulting in diminished mental capacity. Age and senility are also common culprits. However, a determination of incapacity should never be based solely on a diagnosis.
“Say what?” A diagnosis of dementia or the beginning stages of Alzheimer’s disease does not revoke legal capacity. I like to say, “Diminished capacity does not mean lack of capacity.”
Parents spending their money “foolishly” is not proof of lack of capacity. Adult children need to know that failure to follow advice is not proof of lack of capacity. What’s more, agreeing with one family member, and not others, is not proof of lack of capacity. However, just because a person has capacity to decide one issue does not assure capacity to decide a different issue.
In a recent webinar (Sept. 15) presented by the National Center on Law & Elder Rights, it gave attorneys “tips” to communicate with people with diminished capacity through something called “Decision Supports.” The goal is to increase a person’s ability to make choices through (1) enhanced communication, (2) empowerment and (3) technology that reduces the need for memory.
According to the NCLER, persons with diminished capacity are denied the dignity of even the simplest of choices in the name of protection. However, people should be empowered to make these choices.
Empowerment is not an assurance that the person is going to make the choice that is “best for them.”
Empowerment is honoring the choice that the person finds is the best “choice for them” while knowing the potential outcomes.
If you have a loved one who has recently suffered a stroke or other illness and has diminished capacity, the NCLER suggests you try to communicate using a normal voice and short, simple sentences. A lower register or tone of voice may be easier to hear. Allow extra time for the person to understand and respond. In other words, don’t fill void of silence — wait for the answer. Before you start, make sure the person knows you are talking. Maintain eye contact if possible. Eliminate background noise. Communication is a two-way street. Just as we try to confirm that the person is understanding our message, we need to ensure that we understand what the person is telling us. Listening is more important than hearing.
Maintain an adult conversation and try to be at the person’s eye level while face-to-face. Don’t talk to an adult as if he or she were a child. If possible, break big issues into smaller parts. Restate. Explain risks, benefits and options. Offer input, recommendations. Ask for input, “What do you think?” Watch facial expressions and gestures for added meaning.
If you have a loved one whose mental capacity is starting to wane or whose mental capacity is already “questionable,” the good news is that an expensive court-supervised conservatorship can be avoided. More importantly, the individual will have the ability to choose his or her own agent to act on his or her behalf, rather than having a guardian appointed by the court.
In conclusion, a valid, up-to-date power of attorney will avoid the need for a conservatorship. A power of attorney is not a complicated legal document, and it is much less expensive than a conservatorship court proceeding. Every adult should have one — for both finances and health care.
Judd Matsunaga is the founding attorney of Elder Law Services of California, a law firm that specializes in Medi-Cal Planning, Estate Planning and Probate. He can be contacted at (310) 348-2995 or judd@elderlawcalifornia.com. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or constitute legal or tax advice and should not be treated as such.
