Dementia and other health issues that affect one’s mental capacity are devastating in many ways, but they can also complicate the basic legal planning that is recommended for all seniors. Countless stories have been shared in the Caregiver Forum about bitter disputes between family members over the validity of an aging loved one’s will, powers of attorney and other legal documents.
The perfect storm of questionable mental capacity and preparing for the future can breed suspicion and jealousy, often pitting family members against one another. However, adding one very simple step to a senior’s estate planning process can reduce the potential for unnecessary stress and familial discord down the road.
What Is a Letter of Competency?
A letter of competency is a statement from a physician certifying that a person is capable of making informed decisions about their about their health care, finances and estate.
While attorneys are prohibited from helping incompetent individuals change or create legal documents, the definition of legal competence differs slightly from the medical definition of mental capacity. Ensuring that a senior is both legally and medically capable of engaging in estate planning (and securing written evidence of such) should eliminate any doubt about the validity of their documentation.
Encouraging a loved one to obtain a letter of competency at the time their will, power of attorney forms, advance directive and any other legal documents are drafted and signed will help dispel any notions that these documents were created while they lacked the mental capacity to make medical, financial and legal decisions.
How to Get a Letter of Capacity
It is best to request this letter from a doctor who has seen the patient for several years and is familiar with any changes in their baseline mental and physical health. For most people, their long-time primary care physician would be the best choice. In some cases, though, it would be wise to obtain this letter from a doctor who specializes in mental health and cognition, such as a psychiatrist or a neurologist.
For instance, your mother is already experiencing mild cognitive decline but she hasn’t had a consistent primary care doctor for many years. In her case, the results of a complete neuropsychological evaluation conducted by a specialist would be more credible than a short mini-mental exam conducted by a new family doctor who is seeing her for the first time.
If you’re uncertain which physician to request a competency letter from, ask the attorney you’re working with for their opinion. They should be able to recommend who would be able to provide the most detailed and accurate statement.
What to Include in a Physician Letter of Competency
A generic letter from a doctor attesting to a patient’s mental capacity should be printed on the physician’s letterhead and include the following fundamental pieces of information:
- Patient’s name
- Patient’s date of birth
- Date the patient-physician relationship was established
- Physician’s statement testifying to the patient’s ability or inability to make independent decisions regarding health care, finances and legal matters
- The patient’s relevant medical diagnoses (e.g., Alzheimer’s disease, stroke, mental illness, developmental delay)
- Date of diagnosis for each relevant medical issue
- Physician’s contact information
While the above pieces of information are typically included in a basic statement of mental capacity, it is wise to work with an attorney to determine if any other facts or supporting evidence should be included, such as medical test results. Keep the original letter(s) of competency with the corresponding legal documentation and store them in a safe place, such as a locked file cabinet, a safe deposit box or at the attorney’s office. It’s wise to have the physician keep a copy in the patient’s medical file as well. Copies of these documents can be kept on hand in a special file for easy access in emergencies.
Read: Strategies for Getting (and Staying) Organized While Caregiving
Documentation is Key
It is impossible to predict whether a sibling, grandchild, stepparent or other family member may contest the validity of an aging loved one’s legal documentation, but it happens all the time. Some of these cases even end up in expensive and lengthy guardianship proceedings. Others result in lawsuits where a loved one’s will is contested. These squabbles can divide families and destroy relationships.
Seeking additional proof of mental capacity when changing or creating any legal documents may seem excessive, but it’s better to be safe than sorry—even if you or your loved one are perfectly healthy and lucid. The time and energy involved in attending a doctor’s appointment and obtaining a letter of competency is minimal compared to the emotional turmoil and legal fees involved in a lawsuit or an investigation conducted by Adult Protective Services (APS).
It isn’t easy, but encouraging your loved one to make sound legal preparations, acting in their best interests, and taking every precaution to carefully document changes in their health and financial status will ensure that their care and your caregiving journey will go as smoothly as possible.
Sources: "Sufficient" Capacity: The Contrasting Capacity Requirements for Different Documents (https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=1009&context=faculty_pub); Understanding Legal Capacity and Ethics (https://ncler.acl.gov/pdf/Capacity%20Ethics%20Practice%20Guide.pdf)