Is it Age or Something Else?
There comes a time when the parent stops taking care of the child, and the child must then take care of the parent. How do you know when that time comes? When you think it might be time to review a loved one’s competency, there are a few things to look for and check out.
Marie Portales Rodriguez, attorney at Rodgers, Miller & Rodriguez, P.C., explains that a critical step to properly evaluate elder competency is getting in touch with a doctor.
“A doctor’s relationship with your loved one is key. While we should all visit our doctor regularly, elderly people often need more frequent checkups,” Rodriguez said. “We all have brain deterioration. But when it happens at an advanced pace in the realm of dementia, a doctor who knows the patient and who closely monitors those changes, can make a big difference.”
“You might set up an appointment with your loved one’s doctor and explain in front of [mom] things you see going on with [her]. Typically your doctor will be able to see with some testing whether this is just an issue of forgetfulness, or if cognition is now impaired,” Rodriguez said.
Talk to the Doctor
Once you get to the point where capacity deterioration is suspected, ask your doctor how fast it might progress. This way you can start to plan accordingly. Rodriguez recommends that everyone have an “estate plan,” but stresses how much more important getting seminal documents in place, like medical and statutory durable powers of attorney, are for elderly persons — before mental capacity comes into question.
If a person loses mental capacity, he/she can no longer execute a power of attorney that names someone to act or make decisions on their behalf. In many cases, the only alternative is to then go to court and seek guardianship.
“Guardianship is an important tool. But in many cases, its cost, and the loss of privacy resulting from required, publicly-filed medical information could be avoided, if people would take time to plan with the help of an experienced attorney,” Rodriguez said.
Most people think about estate planning as “making a Will.” While the Last Will & Testament is an integral part of good estate planning, as we get older, the chances increase that we’ll be prone to lose partial or total capacity due to age, accident, stroke, dementia, or any other number of issues. If we don’t chose who will make decisions for us if/when that time comes, a court will. So it’s best to plan ahead and discuss your options with an experienced lawyer. Alternatively, if you’re caring for someone who you think needs a guardian, visit with an experienced lawyer who practices guardianship law.
Rodriguez explains that finding a lawyer is much like finding a doctor. It requires independent research, and finding someone you are comfortable with. “You might call the State Bar Association, and ask for an attorney handling estate planning, guardianship and/or elder law as a start, or do a search under those terms on the Internet. Then meet the lawyer in person. He/she needs to understand and know you/your elderly loved one.”
Suspecting Abuse in Power of Attorney
If you suspect someone is abusing power granted under a power of attorney, or if you suspect physical abuse, call 911. You may also call the Texas Abuse Hotline (1.800.252.5400), and get a good guardianship attorney to learn how to address and stop exploitation immediately.
“It is important to act quickly,” Rodriguez said. “Don’t be afraid to talk to a lawyer if you suspect any type of abuse. Most initial consultations are free.”
Luckily, the State Legislature is serious about stopping exploitation. Rodriguez explains that there are new criminal laws on the books that have an “elder law enhancement” provision in which District Attorneys are being trained to look at a case and see if it is one that can be criminally prosecuted.
Within civil statutes, it’s important to remember too, that anyone can file an application for guardianship. A person seeking guardianship, or even one merely bringing the case to the court’s attention by filing an application, does not have to be a blood relative.
Rodriguez noted that with the Baby Boomer population now entering elder years, cases of abuse and exploitation are unfortunately on the rise. Education about estate planning, and how to use it in conjunction with medical treatment/intervention can be key tools to improving the quality of life of your loved one. Most people are also surprised to learn how quickly and affordably estate planning can be done. Rodriguez said “packages” in her office, which include in most cases a Will, Powers of Attorney, Directives to Physicians, and Declarations of Guardian, run between $500-$750/per person, on average, which is far less than the cost of guardianship and the loss of privacy resulting from its requirements.
For more information, contact Rodgers, Miller & Rodriguez, P.C. at 979.260.9911.
by Ashlea Gutierrez