Capacity vs. Competency- When to Seek a Guardianship

Who’s The Boss?

A client recently called our office asking if she has “the right” to move her mother into an assisted living community against her mom’s will. The adult daughter, Mary, has a General Durable Power of Attorney in place for her mother, but what rights does Mary really have? Does she have the right to establish a residence for her mom, Alice?

How do you help someone who won’t help themselves?

Alice has been diagnosed with Mild Cognitive Impairment (MCI) and recently experienced a few minor falls in her home, where she lives alone. Mary believes it is time for Alice to transition to an assisted living community to provide safety and much-needed socialization. Alice was on board with the idea, and even expressed excitement over the three meals that would be provided for her daily. After touring multiple communities together, they chose one…. but when the movers came to pack up her home, Alice announced she’s “not going anywhere!”

Who’s in charge? 

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, Mary cannot move her into a long-term care community without her mother’s consent. There is a bit of 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, for instance, under a durable power of attorney Mary can sign a contract so her mother has an apartment at an assisted living community, but she cannot force her to move there.

Competency, on the other hand, 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  Mary’s mother has been determined to lack capacity, Mary 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 Mary is declared Alice’s guardian, she could then legally determine where her mother will reside. It gives her the right to establish a residence for Alice. These terms can be confusing!  If your family has questions about whether guardianship may be necessary, please call Hurley Elder Care Law at 404-843-0121 for a complimentary phone consultation.

So…what should Mary do?

Communicate – discuss options and don’t push.  Empathize and listen – hearing with compassion (rather than pushing an agenda) builds trust. Give mom some control – no parent wants to be told what to do. Instead, Mary should ask about Alice’s priorities and give her choices. Sometimes the loving thing to do is to seek guardianship for the safety and well-being of the loved one. At the end of the day, if an elderly parent refuses assisted living or other caregiving services and says it is their final decision, it’s important to still give love and support. Time is precious so try to make every moment count.

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