Why a Letter of Competency Should Be Part of Every Senior’s Legal File

With old age comes an inevitable decline in one’s cognitive and mental health, complicating the process for seniors in the midst of their legal planning. If you are a senior who is making arrangements for your future, you might consider adding a Letter of Competency to your file of legal documents. Obtaining a Letter of Competency is especially crucial if you believe there might be any contention regarding the validity of your documents. A Letter of Competency will prevent your documents—such as your will and Powers of Attorney—from being challenged by an incompetency claim. By eliminating any doubts or questions about your mental capacity at the time that your documents were being prepared, you can minimize the chances of familial discord arising.

Prepared Senior with Letter of Competency

Reasons for a Letter of Competency

While it is impossible to predict whether a sibling, grandchild, stepparent, or other family member will challenge the validity of an aging loved one's legal papers, it happens often. Some of these cases even end up in costly and time-consuming guardianship proceedings. Others lead to legal proceedings in which the will of a loved one is contested. These arguments can tear families apart and destroy relationships.

It seems superfluous to ask for more proof of mental capacity when revising or creating legal documents, but there is no harm in prevention and protection. The time and energy required to attend a doctor's appointment and receive a letter of competency is minimal compared to the emotional turmoil and legal costs associated with a trial or investigation by Adult Protective Services (APS).

How a Letter of Competency Works & Who Can Provide One

The certificate of competency is usually written by a primary care physician who is familiar with the patient’s initial physical and mental health changes. In some cases, it may be a good idea to obtain this letter from a doctor who specializes in cognitive or mental health, such as a neurologist or psychiatrist.

Obtaining a letter of competency at the time one’s will, Power of Attorney forms, advance directive, and any other legal documents are drafted and signed will help dispel any suspicions that these documents were produced while lacking the mental capacity to make sound medical, financial, and legal decisions. 

Attorneys are prohibited from helping incompetent individuals change or create legal documents, but the legal definition of incompetence is slightly different from the medical definition of mental capacity. To ensure that a person can make legal and medical decisions about their health care, finances, and property, any doubts about the validity of their documents should be removed.

What a Letter of Competency Includes

A Letter of Competency should be printed on the physician’s letterhead and include the following pieces of information:

  • The patient’s name & date of birth
  • The date on which the patient-physician was first established 
  • The physician’s statement affirming the patient’s ability to make independent decisions regarding finances, legal matters, and healthcare
  • Relevant medical diagnoses & each of their dates
  • The physician’s contact information

In addition to the information mentioned above, it is wise to work with an elder law attorney to determine if any other facts or supporting evidence should be included in the letter. The original letter should be filed with the corresponding legal documentation and kept in a secure location. Your attorney should also have all of your documents, including the letter, readily available. It is recommended that your physician keep a copy of the letter in your medical file as well.

How to Obtain a Letter of Competency

This letter may be requested from a primary care physician with whom the patient is familiar and has an established relationship. The physician should be able to recognize any changes in the patient’s baseline mental and physical health. In certain cases, it may make more sense to request the letter from a specialist in mental or cognitive health.

An attorney should be able to determine when it is necessary to obtain the letter from a specialist rather than a primary care physician.

The basic legal planning recommended for seniors can be a confusing and lengthy process to navigate on your own. Taking every precaution to ensure the legal validity of your documents will reduce the potential for dispute in the future. If you need a highly qualified and experienced attorney to guide you through this process, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to have all of your questions answered,

When POA Isn’t Enough: Authorizations Needed to Act on A Loved One’s Behalf

Family caregivers are often given the responsibility to access private documents/information regarding their loved ones due to the large amount of paperwork that might arise pertaining to their personal care. Caregivers often feel bombarded with signing, filing, mailing, or faxing such documents, which is where Power of Attorney documents (POAs) come at hand, saving time and stress. In some cases, a few organizations require their own documentation to approve contributions in one's affairs. An individual should never take on this lengthy process by themself. To minimize the risk of making a mistake that may cause dire consequences down the road, the best approach is to hire an elder care attorney.

POA May Not Be Enough

Hiring a Power of Attorney is Crucial for Seniors and their Caregivers 

Elder law attorneys specialize in legal concerns that affect older individuals, their spouses, and their children—specifically the medical and financial aspects of them. A Power of Attorney document allows certain individuals who are identified as “the agent” to legally make decisions on behalf of another person who is identified as “the principal.” The individual is then granted power upon the principal’s personal matters. It is evident that such preparations cannot be legally processed without such documents being authorized. 

However, POAs are not always apodictic. The actions an agent can or cannot take on behalf of a principal, as well as when their powers commence and stop, might differ depending on how these papers are written. Caregivers may run into issues when attempting to utilize POA forms for healthcare and money to oversee the care of seniors if they are not correctly prepared or interpreted. Long before incapacitation becomes a concern, families should prepare these legal documents. When a loved one is unexpectedly disabled due to an accident or sickness, POA paperwork can allow agents to step in and help handle the situation—provided those documents are prepared appropriately.

Some Entities Do Not Accept Power of Attorney 

As useful as POA’s are, third parties such as banks are reluctant to approve such financial documents due to the possibility of fraud, in which case they may be held responsible for any harm that results. 

Such banks take an extended period of time to verify the legitimacy of a financial Power of Attorney and may even want to speak with the attorney who finalized it. In addition, they might also require that the agent and/or future POA sign a written statement declaring that they are operating legally, therefore absolving the other party of all liability. Nonetheless, there should be no issues arising besides the time-consuming process of being approved as a POA. 

Authorizations Needed to Manage a Senior’s Care

A SSA Authorized Representative

Helping a loved one or assigned senior with Social Security applications is possible with the correct documentations, one can apply to be their authorized representative by completing the SSA-1696 Appointment of Representative Form. 

SSA Representative Payee

You must apply to become a representative payee if you want to actively help a Social Security recipient manage their retirement payments and/or Supplemental Security Income (SSI). All beneficiaries who are unable to manage their own payments must have a representative payee according to the Social Security Administration.

While this may be the authority you're searching for, it's important to note that it comes with a lot of responsibility. This work necessitates a thorough recording of all a beneficiary's benefits and how they are utilized, requiring attentive and responsible individuals. If there is no family member or acquaintance available to hold the “rep payee” title, the SSA will designate another qualified beneficiary to hold such recipient benefits. 

VA Fiduciary Designation

Administering veteran benefits also requires its own process. Obtaining POA authority is not a satisfactory requirement for the U.S Department of Veterans Affairs (VA). The VA will request the appointment of a fiduciary if a physician or a court of law determines that a veteran (or surviving spouse) is incapable of handling his or her money. A close friend or relative is readily available to fulfill such a position as long as the VA successfully and thoroughly conducts a close investigation of such individuals’ competence. If there is no family member or acquaintance available to hold responsibility for the veteran, the VA will designate another qualified beneficiary to hold such recipient benefits. 

Medicare Authorization 

It is important to note that Medicare will not provide disclosed health information to an assigned caregiver regardless of relationship to the agent. There must be a written authorization already submitted and approved by the Centers for Medicare and Medicaid Services; verbal permission is also an accepted option. Medicare enrollees may be able to speak and answer simple questions over the phone, giving their caregivers permission to disclose coverage data. If you and your loved one are unable to speak on the phone together, consider attempting to “include them” using your cellphone or other three-way calling device to keep all parties on the same page.

The "1-800-MEDICARE Authorization" Form can be filled out and mailed in or done over the phone with the help of a customer service professional. Please note that certain private insurance companies frequently have their own processes for these documents, so make sure to ask about their unique permission needs.

Be Proactive About Caregiver Documentation

Keep in mind that many problems may be addressed with a combination of goodwill, clear explanations, and reasonable inquiries asked of the appropriate individuals when advocating for your loved one or assigned “agent.” If you're unsure, ask to talk with a supervisor. If no one is available, or if no amount of logical conversation appears to be working, you have the right to consult with legal counsel. 

If you are in need of highly qualified and experienced help regarding a Power of Attorney issue, please contact the Law Office of Inna Fershteyn at (718) 333-2394 to have all of your authorization questions answered.