What should I do if My Parent or Spouse is Incompetent

What should I do if My Parent or Spouse is Incompetent
By Alan Orlowsky

Let's Talk about what to do if your parent or spouse is Incompetent and how taking over a loved one's financial affairs can be tricky. 

 Ellen was alarmed when her 83 year old husband Barry hired a contractor to repair the couple's roof. The contractor had knocked on the door one day, convinced Barry that he needed work done on the roof, persuaded Barry to fill out and sign a loan application to pay for the work and took a check as a down payment. The roof was not in need of repair and now the contractor had the couple's personal and financial information and vanished.

This was not the first time Eleen noticed Barry's good judgement was slipping. Sometimes he didn't know what day or month it was, and he's forget important appointments. More than a few times he locked himself out of the house and car, and he even occasionally forgot his children/s names and where they lived. Ellen knew she had to take control of their financial affairs to prevent Barry from making potentially disastrous mistakes.

The couple met with their attorney and drew up powers of attorney for property and health care, which gave Ellen the authority to make all the couple's decisions without Barry's participation or consent, as long as Barry's doctor considered him mentally impaired. Ellen then obtained a letter from the doctor to that effect.

Resistance

Ellen was one of the lucky ones, because Barry (and his doctor) cooperated with her. Many people aren't so fortunate - their loved ones resist giving up control, and family members are forced to initiate guardianship proceedings, which can result in deep embarrassment, strained relationships and costly legal fees.

 The Kind & Gentle Solution

First and foremost, you should ensure that your spouse or elderly loved one is in a healthy and safe environment, is receiving good nutrition and medical care, and is maintaining social interactions.

Secondly, have a heart-to-heart talk with your loved one. You may want to have other family members present, especially adult children, but try to resolve dissension or disagreement among yourselves before approaching the mentally impaired individual.  Try to persuade that individual to yield control of the family’s financial affairs and to sign powers of attorney if he or she hasn’t already. This may be difficult, because many people, especially those who have been “in charge” all their lives, are afraid to give up their independence and let others make decisions for them. If the individual is uncooperative, before you go to court you should seek help from a neutral third party to mediate, such as a trusted professional adviser, psychologist, clergy member or family counselor.

Legal Proceedings

If the kind and gentle approach doesn't work, you may have to engage an attorney. In most cases, going to court to have a loved one declared incompetent is very messy and depressing for all involved, which is what you should try everything in your power to avoid it.

Under Illinois law, the legal term "disabled person" is used to describe an individual who is mentally impaired, incompetent or incapacitated. A disabled person is one who is  at least 18 years old, who is not fully able to manage his or her personal estate because of mental deterioration, physical incapacity, or mental illness.

To have a individual declared legally disabled requires a guardianship proceeding in a court of law, and an actual finding of disability by the judge. If legally found disabled, these individuals would be deemed unable to manage their own affairs, which would include signing a contact, will, trust or power of attorney. You or another relative or trustee, would be appointed to assume responsibility for that individual's affairs. Once declared disables, there is usually no going back..

The legal process is both difficult and costly for all parties. Unless there is overwhelming proof, such as medical records, doctor's testimony and witnesses, it is not easy to gain a finding of disability. The elderly can have an off day and have more cases of dementia but that is not always enough to find them mentally incapable of managing their affairs.



Even if you have the best of intentions, it's natural to feel some guilt and pain as the person who is taking his or her spouse or parent to court. No one wants to see a loved one impaired, much less prove it to the world. Moreover, if the judge disagrees with you and finds your loved one competent, there is usually no further recourse available to you.

Doing Nothing is the worst option

Although legal action is the less preferable course to take, it is often better than failing to take any action. The Elderly are frequent targets of scams and frauds, and can be unduly influenced by unethical parties. You and your children have a lot to lose by failing to protect your estate. You can not stop an adult from making rash and harmful decisions, and even the most well-planned estates and the harmonious of families can be tested by the ravages of old age. Quick and thoughtful intervention with the help of experienced legal and financial advisers will help minimize the damage.

And What is You Become Incompetent?

Let's face it, at some point before our deaths many of us will become mentally unable to manage our own affairs. We hope this does not occur at all, but it is best to plan now while we are healthy, fully cognizant and still able to make smart decisions.

Many elderly people avoid such planning until they are urged to do so by their children. Even then some tend to deny that they will ever need help managing their affairs, and others react in a hostile way toward their children, fearing they'll lose control of their lives. The consequence of failing to plan for the possibility of your own incompetence, however, can be devastating to your family, not to mention your own well being.

The best planning tools are standard estate planning documents, healthcare, power of attorney, durable power of attorney and living trusts. Assuming that you execute those documents while you're still competent, they ensure that you alone determine how and whom your estate will be managed during your lifetime, or in case of your disability and death. Without those documents in place, if you do become incompetent, it may require costly court action to determine who will manage your affairs and in what manner.

For more information about estate planning tools, or if you are questioning what to do if your parent or spouse becomes incompetent please contact the Law office of Orlowsky & Wilson y calling 847-325-5559, or visit our website at www.orlowskywilson.com for more information.