Is Your Parent’s Mental Capacity Affecting Their Decision-Making Abilities?

By Jill Poser – Kammet, CGCM

Susan, a 69-year-old woman, lives with her sixth husband in a home that he owned before the marriage. Susan has struggled with undiagnosed mental health issues and drug addiction throughout her adult life. She has used marriage to have others take care of her. Susan has divorced five times, has no career, rarely held a job, and has no savings. Her two adult sons no longer speak with her.

When Susan and her current husband met, he was a practicing accountant and seemed to have a viable practice. However, over the years he has struggled with addiction issues that have impacted his current health leaving him incapable of working or taking care of his wife any longer. Susan and her husband were introduced to a homeless woman who needed a place to live. The homeless woman moved into their home in exchange for caregiver services.

Recently, Susan reached out to her out-of-state brother begging for help. Susan stated she can no longer live with her husband because the money is running out, he is sick, and she cannot care for him. She asked her brother and sister-in-law if they would move her into her own apartment with a companion because she does not know how to take care of a home or handle her own matters. She asked if they would cover her expenses monthly because they had told her in the past that they “would never let her drown.” However, Susan changes her mind daily about leaving her husband depending on her emotional state.

Susan’s brother asked her to execute Advance Directives so they would have the legal authority to step in and help her in case of a medical or financial emergency. They, in fact, offered to pay for the legal services to make it easier for her.  Susan stated she does not think it reasonable to ask her to execute the documents because she does not want anyone having the authority to tell her what to do. Her brother and sister-in-law reached out to me for help. They are distraught, uncertain how to help her, and they want to know if she can make decisions for herself.

Mental illness cases always lead to interesting, yet conflicting, discussions, and outcomes. In simple terms, mental capacity means being able to make your own decisions. Lawyers will argue people have the right to make bad decisions and, at times, the law supports that. However, the clinical approach does not always align with the legal perspective. We all make decisions daily, and some decisions are more significant than others. Many people can make their own decisions and may pursue information, advice, or support for more serious or complex situations. Yet, there are those people whose capacity to make certain decisions about their lives are affected temporarily or on a permanent basis. Perhaps a person with mental health vulnerabilities or mental illness may be unable to make decisions when he/she is not well but may be able to make them when he/she is well. This is quite different from an individual with dementia, who is likely to lose the ability to make decisions as dementia becomes more severe.

What to do

From a clinical perspective, an individual lacking capacity or exhibiting diminished capacity because of mental illness, dementia, or a learning disability, most often cannot do one or more of the following:

  • Understand the information given to him/her
  • Retain that information long enough to be able to make the decision
  • Evaluate the information available to make the decision
  • Communicate his/her choice
  1. As a family member or trusted adviser, are you familiar with the signs and symptoms of incapacity?
  2. Is there a working protocol to address the issues of incapacity?
  3. Do you have a CHECKLIST accounting for documents and information you must gather with the assumption that a loved one or your client WILL  become incapacitated at some point, on a temporary or permanent basis?
  4. Do you have strategic alliances with key professionals to problem solve?
    • Care manager
    • Guardianship attorney
    • Elder law attorney
    • Estate planning attorney who has strong relationships with guardianship and/or elder law attorneys
    • Financial adviser
  5. Has your loved one, parent or client executed proper advance directives?
  6. Are your client’s or loved one’s beneficiary designations still adequate?
  7. Are successor fiduciary designations in place for POAs, trusts, or for health care advance directives?

Do not assume your clients are all capable of making appropriate decisions. Do not assume your parent, loved ones or your clients will always stay as they are. I encourage you to be proactive by helping your loved ones or your clients to plan for the worst and hope for the best.