My question is....if a person is to be deemed legally incapable of making their own decisions, this is something that has to be done in a court of law? I know I seemed to answer my own question using the word "legally"........but....my 91 yo mother has refused for years to see a doctor and has been living in deplorable conditions. APS says no one has had her declared incompetent so she can live as she chooses. I have stayed with her, getting her groceries and performing various logistical needs for her. It has been very stressful with the daily angry hysteria, slaps and spitting in my face, etc In May she fell and has fractured her hip and broke her wrist. She has spent about six weeks in a rehab facility. I took the opportunity to get her to a geriatric specialist. He determined she has dementia, and filled out a paper saying she is not capable of making medical decisions. He also found she has thyroid, anemia, UTI, and other issues and has prescribed meds. She is due to be discharged from the rehab place shortly. They say she needs a walker, and has made other recommendations. She vehemently refuses any help at all. There is a board and care I want to place her in, but understand how it stands now, if she flat out refuses to go there, and refuses to take her meds, there is no legal way to enforce it. Back to my question then....the document signed by the doctor is not enough to put the "power" into my POA? I still need to go through a court of law if she is to be declared to legally not have capacity? Besides providing her with her care, I want to make sure I do not do anything I have no legal basis to do; and that I do not do anything that seems legally neglectful because of what the doctor wrote. Side note, I really think when someone is younger and prepare a POA document, they need to describe what their clear minded wishes are, and provide that their POA may have to take an adversarial stance about things they say when they are getting dementia.
She may settle in after awhile or she may be so much trouble they kick her out. If she's hitting and spitting she needs some calming meds.
Legally, she gonna sue you? Some relatives might sue you? This borderline competency situation with elders Is common. And from your description of her behavior it's pretty clear this has crossed the border. Do what you have to do to care for her.
Has she been seen by a geriatric psychiatrist? Sometimes, antidepressants and anti anxiety meds can make a world of difference.
You can then work with the Social Worker to find an Assisted Living facility, Nursing Home or you can make the decision to bring her to live with you or if there are other family members that will help in this situation.
If the ReHab facility is aware that she can not manage on her own they will not want to discharge her because they do not want a readmission.
Declaring her incompetent will require a court. Someone will have to be appointed Guardian. This can get complicated, expensive and a down right pain in the @ss! (voice of experience here)
I strongly suggest you get a lawyer that specializes in Elder Law. Expensive? Yes..Worth it? Yes.
As long as there are assets, house, money, property you will need or have guardianship of the person and of the estate. Once there are no assets it will revert to a guardianship of the person only. That is a bit easier and does not require a court review of expenses every 6 months. All I can say is save EVERY receipt that you have that has anything to do with her care and any expense you put out.
Full Definition of incapacity
plural incapacities
: the quality or state of being incapable; especially : lack of physical or intellectual power or of natural or legal qualifications
Medical Power of Attorney
A medical power of attorney is one type of health care directive -- that is, a document that set out your wishes for health care if you are ever too ill or injured to speak for yourself.
When you make a medical power of attorney -- more commonly called a "durable power of attorney for health care" -- you name a trusted person to oversee your medical care and make health care decisions for you if you are unable to do so. Depending on where you live, the person you appoint may be called your "agent," "attorney-in-fact," "health care proxy," "health care surrogate," or something similar.
Your health care agent will work with doctors and other health care providers to make sure you get the kind of medical care you wish to receive. When arranging your care, your agent is legally bound to follow your treatment preferences to the extent that he or she knows about them.
Execution
In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal.[4] This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party.[citation needed] Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge.[citation needed] However, such notarization is not always necessary for such a document to be considered legal.
Get the File
Durable Power of Attorney Form
I, _________________ (name), of ____________________________(address), designate _______________________(name), of ___________________________(address) as my attorney-in-fact (or agent) to act on my behalf should I become disabled or legally incapacitated.
Upon the event of my disability or legal incapacitation, my agent has the authority to act in my place in any way that is lawful regarding the following powers:
To maintain and manage any of my real or personal property
To buy, sell, or lease any of my real or personal property
To borrow money on my behalf
To conduct banking transactions including liquidating, consolidating, endorsing checks, depositing, and withdrawing funds
To prepare, sign, and file tax returns
To enter into contracts on my behalf
To collect government benefits
To access safety deposit boxes and remove the contents therein
To handle any legal proceedings or lawsuits on my behalf
To maintain a standard of living for me
there are 2 types of Guardianship Guardianship of the Person and Guardianship of the Estate.
You will have to go to court and you or someone will be appointed Guardian. There will be a GAL or Guardian Ad Liedum (sp?) this court appointed person will check in once in a while to make sure that you are following the "rules" this person will have to be paid. You will have to be bonded, the cost will depend upon the value of the assets.
You will have to keep ALL receipts that will prove how much you have paid to her care. If you have paid out of pocket you can be reimbursed from her account. If she is living with you you will be able to deduct some rent, some for electricity, gas...it might be possible that you could be paid for care giving services. I could not since it was my husband I am caring for.
You will have to keep all records and go to court every 6 months to present to the judge the expenses. (actually the lawyer goes but you have to provide all the info to the lawyer so they can prepare)
This costs a bit money for the lawyer, for the GAL, for the bond, for court. Not pleasant. Once the money runs out you are then Guardian of the person. No longer will they need a guardian for the estate and the person.
There are pamphlets the you might be able to see on line about Guardianship and what it entails.