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The Legal Principle You MUST Understand if You Have an Aging Loved One

Families with aging parents or other relatives want to be prepared to take care of their loved one in the event of a dramatic change in health, but if you aren't careful you can wait too long to prepare for these life-changing events. And the result is often costly, both financially and emotionally.

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The quickest and easiest way to transition into a situation where a person can no longer take care of themselves is through the use of a power of attorney and its close relative, the durable healthcare power of attorney. These two instruments, if prepared properly, can allow a loved one to quickly and easily take over all of the important decision making that an elderly person may no longer be capable of handling.

However, in order to properly execute these documents, the elderly person must have legal capacity. In Texas, legal capacity generally means that a person can appreciate the nature and extent of his or her property. But this definition can be deceiving. There are a number of practical things that should be considered in determining whether a person has capacity. In a recent article, Jill Roamer and Marchesa Peters listed the following as possible signs of diminished capacity:

  • Dependence on others for details about finances, property, or debts

  • Excellent recall of past events, but fuzzy about recent happenings

  • Difficulty remaining on topic

  • Calculation problems

  • Disorientation

  • Consultations set up by a friend or family member

  • Dependence on others for travel

When the time comes to execute the legal documents needed to allow other family members to take over the financial and healthcare decisions of an elderly person, a problem often arises because the elderly person no longer has the capacity to execute the documents that are needed for a smooth transition. Without such capacity, it becomes necessary to use expensive and time-consuming court proceedings instead. As such, it is important for an elderly person to take action.

To avoid problems with capacity issues, it is important to execute powers of attorney early, while the senior still has full capacity and there is no risk of a need for court proceedings.

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