senior legal planning - Trust and Estate Planning Law Office

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.

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,

Ensuring that the needs of our loved ones are met is one of the biggest responsibilities we face as they age. Although we would like our elderly parents to remain independent for as long as possible, there may come a time when they can no longer take care of themselves. It is important to start proper legal/financial planning and research long-term care options ahead of time, before any significant changes in their physical and mental abilities occur. It is crucial that you are prepared to provide them with the necessary support when they start to show signs of needed assistance.

Signs a Senior Needs Help at Home

These are typical signs that an elderly person may require home assistance or a higher level of care:

Difficulty Performing Activities of Daily Living

1. 1. Bathing and grooming
  2. Dressing
  3. Toileting
  4. Continence
  5. Walking and transferring (e.g., moving from the bed to a chair)
  6. Eating

Changes in Physical Function & Appearance

1. 1. Significant weight loss due to poor diet, difficulty cooking, eating, shopping for food, etc.
  2. Difficulties with dressing appropriately (e.g. wearing soiled clothing, dressing for the wrong season)
  3. Poor personal hygiene and unpleasant body odor due to infrequent showering
  4. Noticeable decline in grooming habits and personal care
  5. Marks on the body indicating falls or changes in mobility (e.g. bruises, wounds, etc.)
  6. Burns on the skin which could indicate difficulties with cooking

Changes in Behavior & Mental Status

1. 1. Lack of motivation or drive
  2. Loss of enthusiasm for hobbies and pastimes
  3. Trouble with keeping track of time
  4. Failure to return calls to friends and family members
  5. Mood shifts or strong mood swings
  6. Increased agitation
  7. Abuse of power, whether verbally or physically
  8. Changes in sleeping habits (e.g., insomnia or sleeping all day)

Neglecting Household Responsibilities

1. 1. Inability to independently complete instrumental ADLs (activities of daily life)
  2. Changes in household cleanliness and organization
  3. Extreme clutter or hoarding
  4. Stacks of unopened mail, late payment notices, or bounced checks
  5. Unpaid bills, calls from collectors, or utilities being turned off
  6. Spoiled food that doesn’t get thrown away
  7. Little or no fresh, healthy food or overall low food supply
  8. Stained or wet furniture
  9. Urine odor in the house, which may indicate incontinence
  10. Cookware or appliances with noticeable burn marks could indicate food has been left unattended while cooking or reheating
  11. Failure to maintain outdoor areas, such as landscaping, snow removal or garbage collection
  12. Signs of unsafe driving (e.g., automobile dents and scratches)
  13. Unfilled prescriptions

Changes in Cognition, Memory, or Judgment

1. Forgetfulness (e.g., forgetting to take medications or taking incorrect dosages, missing appointments, misplacing items)
2. Increased confusion
3. Loss of reasoning skills
4. Consistent use of poor judgment (e.g., falling for scams or sales pitches, giving away money)
5. Difficulty performing familiar tasks
6. Frequently getting lost when walking or driving
7. Repetitive speech patterns
8. Inability to complete sentences
9. Impaired word-finding ability
10. Changes in personality or behavior
11. Poor personal hygiene
12. Inability to recall names of familiar people or objects

If you suspect your parents are displaying any of the warning symptoms listed above, the next step is to talk to them about their changing skills and care requirements. It may be a sensitive topic and lead to rising tension. However, it is extremely importantIt's ideal to talk about the future with elderly parents as soon as possible so that everyone is on the same page and no surprises arise.

Keep in mind that these warning signs do not always indicate that a relocation to assisted living or a nursing home is necessary. Their presence, on the other hand, indicates that daily supportive care is required. Hiring home care allows many families to keep their elderly loved ones in their homes for as long as they can safely do so.

If you need further legal assistance with elder care planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to best prepare your legal documents for the future.

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

How to Determine a Senior Needs Help at Home