Question: My 80-year-old father had some seizures a few months ago. Doctors treated him at the hospital. Since then, he has had lapses in short-term memory. His long-term memory is still all right, but his retention of ordinary day-to-day matters is weak.
He knows that he has lost some functionality, and he has become frustrated and somewhat depressed. At his last doctor’s visit, the doctor prescribed some medicine for memory loss and a mild antidepressant, and the medications have helped him overall. My mother who is a couple years younger and in good shape is under quite a bit of stress caring for him, but she claims that she can handle it.
My siblings and I are concerned about what we should be doing. My father only designated my mom as an agent on power of attorney forms, and they have not been updated in many years. Where do you think we should go from here?
Answer: Given your father’s condition, it would probably be most prudent to get him in to see a lawyer soon. Although your mother may be perfectly capable of handling his personal and financial affairs now, your father’s condition will probably deteriorate, and you and your siblings will likely need someone to act as an alternate agent should your mother be unable to act.
The question will be whether your father has the legal capacity to create new powers of attorney for financial management and health care. In order to execute a power of attorney, a person must have mental capacity, i.e. he or she must be “capable” of signing and understanding documents. This legal standard is the same as that of someone signing a contract, which means that the person must understand and appreciate the consequences of the document being signed.
The law on capacity identifies four broad categories of mental deficits that may affect a person’s capacity: alertness and attention, information processing, thought processes, and ability to modulate mood. The statute, Probate Code section 811, actually provides more detailed items within each category. In your question, you identify some short-term memory problems and depression — deficits in both information processing and mood. But the identification of a mental deficit is only one part of the analysis.
Under the law, a mental deficit can only be considered if it “significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.” Even though your father might have short-term memory difficulties and depression, those problems might be treated under a doctor’s care. When he signs the document, he may understand well what it means to grant authority to someone else to act on his behalf. Thus, he would have capacity, and assuming other formalities are met, the power of attorney would be valid.
As a practical matter, most lawyers will suggest that any client whose mental capacity is questionable obtain a note from his or her physician that he or she is capable of understanding and signing legal documents. But such a note is not required. The attorney as well has the power to determine whether a client has mental capacity to execute a legal document.
If your father has the capacity to execute a new power of attorney, then he can identify you or your siblings as alternates. Should your mother not be able to act as agent, the named alternate could act. But if your father is unable to execute a new power of attorney, the previous power of attorney would be the operative document. Under that power of attorney, if your mother cannot perform as his agent, then there is no one as a backup.
Without any authority to you under a valid power of attorney, you would need to file a petition in the probate court to be appointed conservator and to act on your father’s behalf. As conservator, you would likely have all those same powers as the agent under a power of attorney, but you would be required to report to the court on an ongoing basis. Conservatorship proceedings can be expensive and time-consuming, so they usually should be treated as a last resort.
Try to get your father in to see an attorney while his condition is somewhat stable. These problems rarely get better with time. It would be preferable to plan now rather than pay later.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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