Legal Question in Elder Law in California

Re: What constitutes mental incapacity when no definitive diagnosis has been mad

Very good advice from my colleagues. Watching you loved ones grow old is not very pleasant.

Good luck, and if you need further advice in Northern California, please do not hesitate to call.

Good luck.

Re: What constitutes mental incapacity when no definitive diagnosis has been mad

You have a problem which requires a great deal of patience and maturity. You have to take care of two elders who do not have much money. The expenses get pretty heavy as people's dependence increases and you will be very lucky to keep your parents out of a nursing home. The first thing to do is to get control of their money. I am afraid you do not have a durable power of attorney. Therefore you must either get your father-in-law to turn over the reins to you willingly or go into court and get a consservatorship on him. For this, as you say, you need a doctor's declaration of dimentia. But you can get this from his doctor when you explain the situation and show him the financial situation. The fact that your father cannot or will not take care of his situation qualifies him for a conservatorship whether or not he suffers from dementia. It is enough that the doctor state that the old man is unable to control his finances. A conservatorship is expensive - $500.00 just for costs and an additional $500 to $1,500 to $3,000 depending on the attorney. If you can convince your parents to cooperate the whole thing can be done with family consensus by getting durable powers of attorney. I doubt you will get these old people's agreement and if not, you will have to get the conservatorship. You have another option, however, which I almost always recommend. Do not beat your head against a wall for people who do not appreciate your efforts. You may decide to step back from the situation and let nature take its course. They will both be put in nursing homes and their little finances will go to pay the nursing home bill. It sounds heartless but I had a client who fought like a tiger to protect her Dad from his fate and she herself ended up in a nursing home with her face against a wall. You need to understand that if these people do not want your help they can make your life hell.

Re: What constitutes mental incapacity when no definitive diagnosis has been mad

You have two basic choices:

1. You can supplement your parents income so that they do not lose their house. This requires you to give up some control, but at least it allows your parents to maintain some freedom.

2. You can petition the court for a conservatorship, which is designed to give you or the court appointed representative control over your parents. This would allow you to control their money. However, what may end up happening is that your parents will be very mad at you and you may have to supplement their bills anyway.

Once you involve the court in your personal affairs that will cost you and your parents something. I urge you to continue to work with your parents. It is difficult to objectively decide what is in their best interests and to what degree your self interest influences your analysis.

If they are truly mentally incompetent you want to insure that they are cared for because it reaches the level that they may hurt themselves. Just remember, you too will be their age some day. Ask yourself if you want your children to do the exact same thing to you as you have considered doing to the parents. It is a very difficult decision to make.