It’s a pretty gray area when it comes to defining the moment when it’s time to take over for mom & dad in decision making… and normally they won’t give in easily! A good start however is understanding the difference between capacity and competency. This will lead to a future blog about Guardianship vs Conservatorship. As mentioned in a previous blog HERE/ about finding your ideal retirement home, sometimes situations escalate quickly and you as grown children will be the one deciding for your parents to be sure they have the right Care.
For now, let’s refer to a recent article from Hurley Elder Care Law where they explain HERE/:
How do you help someone who won’t help themselves?
Helen has been diagnosed with Mild Cognitive Impairment (MCI) and recently experienced some falls in her home, where she resides alone. Laura believes it is time for Helen to transition to an assisted living community to provide safety and socialization. Initially Helen was excited over the three meals that would be provided for her daily. After touring some communities together, they chose one…. but when the movers came to pack up her home, Helen announced she’s “not going anywhere!”
What is the difference between capacity and competency?
Being able to make a decision is called having capacity. Capacity is not solely based on cognitive impairment. In fact, a person with mild cognitive impairment may still have the capacity to execute legal documents and make their own decisions. Indeed, capacity is a fluid concept—it varies throughout the day, week, month. Unless her mother has lost capacity, Laura cannot move her into a long-term care community without her mother’s consent. There is a gap between a Durable Power of Attorney – which allows the delegation of legal and financial authority – and a Georgia Advance Directive for Healthcare – which permits the delegation of health care decisions. So, under a durable financial power of attorney Laura can sign a contract so Helen has an apartment at an assisted living community, but she cannot force her to move there.
What about competency?
Competency can only be determined through the court system. The judge determines whether the individual in question is no longer able to handle his/her own affairs. If Helen has been determined to lack capacity, Laura can then petition the court for guardianship. A guardianship is sometimes necessary when an individual has lost sufficient functional or cognitive capacity to make or communicate significant, responsible decisions about their health and safety. If Laura is declared Helen’s guardian, she could then legally determine where her mother will reside. It gives her the right to establish a residence for Helen.