Incompetence — caused by medical conditions

leaglebeagleOne of the most frustrating problems for families and care providers is the intransigent patient.  The patient who does not eat well, has poor judgement, stays at home, says they just plan to die at home, and have no intention of following family or healthcare provider advice.  Like it or not, ethically and legally the patient gets to do what they want and only heartache and frustration will result from efforts to the contrary.  What to do:  maintain contact, don’t blame, help where possible, support, be a friend and call a social worker.

HOWEVER, the situation described might have been avoided.  Might have been happier.  Might be different with healthcare provider and family input at an earlier stage, by simply asking, “what do you want to happen at the end of life?”  Listen carefully to the answer.  Because, at that point, many people are receptive to the idea of making some plans and formalizing their wishes.  Hopefully, the following documents can be completed:

  1. A living will or similar document.
  2. A financial durable power of attorney.
  3. A medical durable power of attorney.
  4. A last will and testament or a trust.

TidyForms and LegalZoom are reasonable places to get free online forms, there are probably other websites as well.  Lawyers are clearly the experts here.  But, for uncontested situations like severe dementia the free forms are usually adequate and a lot less expensive.

Why does this help?

  • Because when the person is able to think clearly about options they can express their wishes for end-of-life care.  Both family and healthcare providers will be inclined to follow the wishes of the patient knowing it truly is the patient’s desire, not just some obstructionism or retaliation against the wishes of others.
  • Because management of finances and health care decisions will be assumed by someone who the patient trusts.
  • And, if such documents exist the barrier to intervention is much lower.  Generally no legal involvement is needed.  Most healthcare providers and banks will follow the instructions of the power of attorney if the situation is logical (like the patient has a medical diagnosis of dementia).
  •   If a bank or care center requires documentation a person is indeed incompetent, a certification statement from two medical providers (a short statement — see below) is usually sufficient to invoke the powers of attorney without going to court.  However, if contested, those signed documents go a long way to getting a favorable court ruling for the power of attorney to act as the patient’s agent.

According to Legal Zoom:

Mental competence is defined as the ability to understand the terms of a contract and the capacity to enter into an agreement. Mental competence can be temporarily compromised, for instance, by intoxication. Permanent mental incompetence can result from severe head or brain injury, mental illness, retardation or a degenerative mental condition such as dementia. The law does not allow a principal who is mentally incompetent to designate power of attorney. A mentally incompetent principal is also prohibited from revoking a power of attorney that was properly drawn up. In fact, a durable power of attorney is designed to allow an agent to act in place of a principal who becomes incompetent, either due to illness, injury or some other reason.”

Competence is a difficult concept.  That’s because competence depends on the question:  competence to do what?  There is a vast difference in the competence to decide what to eat and the competence to enter into a legal contract.  So, a person can be competent to do lots of things but not competent to do other things — it’s not a monolithic term.

Judgment is something different.  People may have poor judgment and be fully competent — if a bad decision means incompetence then we all would be in that boat at one time or another.

Mental retardation and mental illness pose huge financial and legal problems.  Professional help from lawyers, psychologists, psychiatrists and social workers is essential.

Physicians statement of mental capacity — competence or incompetence.   Requests for this type of evaluation are becoming more frequent as the population ages and dementia is more common.  Primary care MDs should not shy away from a dementia evaluation, but there are elements that need to be addressed.  A note on a prescription pad, “OK for nursing home, poor memory.” is not adequate.

It is surprising how many primary care providers base the diagnosis of dementia only on what the family reports — they never do a simple mental status exam or take the time to train a nurse to do it for them.   A Mini Mental State Exam would be great — it is excellent documentation for the medical record.  But, at a minimum, a check of orientation (person, place and time) is required.  It’s not difficult:

  • Please tell me your name.
  • Where are we right now?
  • Could you tell me what time it is now?  [do you remember what day of the week it is today?]  [what year is it?] [is it 1949, 2016 or 1975?]

Without a doubt, a person who does not know who they are can not enter into an agreement — they probably can not even sign their name!  And, a person who does not know the city where they are or the correct year certainly does not have the ability to understand the terms of a contract.   Those two things mean the patient is not legally competent.  Those two things mean the power of attorney documents could be activated.

After an MD does an assessment which demonstrates a lack of competence the following are key elements for the statement:

  • Name and address of MD
  • Date and time of exam
  • Name and birth date of the patient with the medical record number.
  • Medical diagnosis related to mental capacity (e.g. brain injury, dementia, stroke etc.)
  • Whether the diagnosis is permanent or temporary.  If temporary when the next evaluation should be performed.
  • Patient age, sex, general condition and over what period of time the diagnosis came into being.
  • Brief findings of the interview and examination (especially orientation).  Other helpful comments include ability to perform activities of daily living (ADLs), ability to manage finances, the need for care givers and potential hazards such as falling or getting lost. 
  • Conclusion: 

[Name] has severe mental incapacity which is a permanent/temporary condition.  He/she is not able to manage financial affairs or make health care decisions for himself/herself or others.  In my opinion his/her power-of-attorney documents for both property and health care should now be in effect.  Specifically, by reason of mental incapacity he/she is unable to do the following:

  1. Manage his/her own estate.
  2. Enter into a binding agreement.
  3. Understand that a contract is being made and its general nature.

All the facts and opinions in this statement are true and correct to the best of my knowledge and belief.

[Signature of MD]

Most states require statements from two physicians.  Other practitioners may be allowed to make statements about competence but the rules are variable.

Guardianship (conservatorship) is the alternative of last resort.  This is an action by a court when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.  A judge appoints a qualified guardian — family or friends have no rights in this matter (the judge makes decisions based on the person’s best interest).  The guardian does not own the assets of the ward but manages the assets and makes decisions solely for the benefit of the ward.  Depending on the person’s specific competence (or lack thereof) the guardian may be directed to make decisions for the ward in these matters:

  • Determine residence
  • Consent to medical treatment.
  • Make end-of-life decisions.
  • Possess a driver’s license.
  • Manage, buy, or sell property.
  • Own or possess a firearm or weapon.
  • Contract or file lawsuits.
  • Marry.
  • Vote.

Guardianship removes rights from a person and the person’s family so it is not something to be taken lightly.  But, there are times when it is essential. A guardian may be a family member or friend or a public or private entity appointed by the court.  They must follow the instructions from a judge and make periodic reports to the court.


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