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Determining Legal and Financial Competency

By Gerald Tramontano
June 30, 2008

An attorney recently called me regarding a client's 92-year-old father, a fairly wealthy man with a moderate dementia from probable Alzheimer's disease. The elderly man was living in a long-term care facility and had just informed his son that he planned on divorcing his wife and marrying a much younger woman he had met there. Since such a development could have a significant impact on the man's estate, the attorney was understandably concerned.

Attorneys are increasingly asking clinicians to evaluate their clients' (or their relatives') financial and legal capacities, as well as their ability to live independently. These evaluations have both legal and ethical implications because the determination can make the difference between maintaining an individual's right to autonomy and his need for protection. Although determinations regarding capacity can limit or remove one's freedom to make financial and legal decisions, they may be necessary to safeguard patients from being exploited.

In focusing on civil (rather than criminal) processes, legal competencies involve the defendant's capacity to:

  • Make decisions involving an individual's legal standing (including marriage);
  • Be responsible for meeting a child's needs as a parent or caretaker;
  • Consent to medical or mental health interventions;
  • Agree to participate in research;
  • Manage one's finances;
  • Sign a contract;
  • Make a will; and
  • Care for oneself and one's property

Does your client have the capacity ' a clinical word, as opposed to competency, a legal term ' to get married? Write a will? Sell a house? Make decisions regarding his estate? Live independently? Since the ability to manage personal finances, for example, is a critical skill often lost by individuals suffering from age-related disorders, such as a progressive dementia, this area has become a growing issue in legal circles.

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