Helping Someone with Diminished Mental Capacity

Posted on March 31st, 2016 by Centennial Law in Capacity

My father's ability to cope with the little challenges of everyday life has diminished.  I'd like to help.  What can I do?

Like just about everything else in life, this question is not as simple as it might sound.  Bear in mind that diminished capacity does not mean no capacity.  The father in this example probably has sufficient mental ability to authorize his child to help.

Discussions with a lawyer about this kind of situation generally focus on appropriate documents.  The documents which will usually be discussed are a will, a power of attorney and a representation agreement.

In this example, the will is not really relevant.  Lawyers say that "a will speaks from the moment of death."  In other words, it will not give a family member the power to help a relative during that relative's lifetime.

To assist father with his business or property matters, the most appropriate tool is the power of attorney.  To assist father in his dealings with the medical profession, the appropriate tool is the representation agreement.  Both of these tools give the person appointed the power to instruct others on behalf of an adult.

From the perspective of the question raised above, it is worth repeating that diminished capacity is not the same as no capacity.  A person of diminished capacity may well retain sufficient mental ability to enable them to sign a power of attorney or a representation agreement - with a real understanding of what they are doing.  In a publication intended to provide guidance to members of the legal profession, it is stated that "the key is whether the client has the ability to understand the information relative to the decision that has to be made ….”  If the father in the example above understands the documents to be signed, then his child may be in a position to provide the help which the child wants to provide.


Article written by Centennial Law Corp. (Douglas E. Dent)

The specific facts of any real life situation can have many unforeseen legal implications. As a result, please note that the general information found in the above article should not be treated as legal advice.