If you are considering obtaining a letter of competency, then there are serious concerns about a family member’s safety and ability to function independently. This experience can be very stressful and it is difficult to know what to do.
With advance directives already in place, your loved one has designated someone as their guardian should they no longer have the capacity to make decisions.
Jump ahead to these sections:
- The Difference Between Competency and Capacity
- Letter of Competency Defined
- When Do Aging Adults Need a Letter of Competency From Their Doctor?
- Behaviors That Are Cause For Concern
- How Do You Get a Letter of Competency From a Doctor?
No one knows if or when they will become incapacitated, and everyone is encouraged to have advance directives in place that designate a trusted person to make decisions on their behalf. The process of becoming a person’s guardian is serious and complex. It is the ultimate responsibility and authority for someone’s care and well-being.
With that in mind, taking the time to understand the process and possible alternatives can help guide you in making an ethical and loving decision.
The Difference Between Competency and Capacity
The terms competency and capacity are often used interchangeably, but it is important to understand the difference. Each state has its own laws on capacity and competency and who can perform a capacity evaluation.
- Capacity means a person’s ability to make informed decisions and give informed consent. For example, if you have a decision to make about a medical procedure, you weigh the pros and cons of that decision. You are able to understand and evaluate the risks and benefits of the decision. Someone who is incapacitated is not able to comprehend the information nor can they make a decision that is in their best interest.
- Capacity means that once a person has evaluated medical or financial information they can then communicate their decision.
- A physician, psychologist, or psychiatrist can perform an evaluation to help determine a person’s capacity. A physician may use their own judgment, based on interactions with the patient, to make a decision about capacity and competency. They may support their claim with information from a mental status exam or another cognitive testing tool.
- Competency is a legal term and can only be determined by a judge after evaluating the capacity evaluation by a physician, psychiatrist, or psychologist.
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Letter of Competency Defined
A letter of competency or capacity is generally written for the courts to determine the need for guardianship and/or conservatorship. Each state uses the terms guardianship and conservatorship in different ways. Some states use just the term guardianship to indicate that a person cannot safely manage healthcare and financial decisions. Others use the term guardianship to mean healthcare and housing, and conservatorship to mean finances.
If your loved one is in need of either guardianship or conservatorship, it means they are unable to manage their day-to-day life. This is a significant step to take since the person or entity appointed by the court to manage those affairs has near-complete authority to make decisions on that person’s behalf.
A person under guardianship or conservatorship cannot do the following:
- Legally sign documents.
- Consent to medical procedures or treatment.
- Open bank accounts or sign checks or otherwise authorize financial decisions.
- Decide where to live.
- In some states, a person under guardianship cannot consent to get married.
As you can see, the rights and responsibilities you take for granted as a person with capacity are removed by the courts and appointed to someone else. This is a serious step and all other options should be exhausted before making this decision.
Keep in mind, even with the authority of guardianship, you can’t force someone to do something they refuse to do. The purpose of this authority is not to wield a heavy hand, but to do what you can to better manage someone’s safety and vulnerability.
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When Do Aging Adults Need a Letter of Competency From Their Doctor?
The decision to petition the court for guardianship and/or conservatorship is a process that requires a letter of support from a physician or other qualified person. Many people opt to hire an elder law attorney to assist them with a petition to the court.
If you think about it, your loved one may not be supportive of this decision because they don’t understand the reasons or need for guardianship. These conversations can be difficult and painful. Conditions that can lead to the need for a letter of competency are the following:
- Dementia. Alzheimer’s or other types of dementia are common causes of incapacity. In time, these conditions often contribute to difficulty with reasoning, judgment, and decision making. For some, dementia can also make people vulnerable to abuse and exploitation. Financial scams and fraud bilk older adults out of billions each year. Dementia can make someone particularly vulnerable to this type of exploitation and abuse.
- Mental illness. Unfortunately, old age does not prevent someone from having a mental illness. Someone may have debilitating depression or anxiety with thoughts of suicide. Others may have psychosis from bipolar disorder or schizophrenia.
- Alcoholism. Severe alcoholism can be devastating for older adults, friends, and family. If the problem is causing significant difficulty with day to day functioning and safety, a letter of competency may be required.
- Brain injury. Brain injuries can occur as a result of an accident or temporary loss of oxygen to the brain. Most brain injuries are permanent. They can cause significant problems with day to day functioning along with problems like aggression or impulsive behavior.
Behaviors That Are Cause For Concern
Competency is not an easy determination to make. Depending on the cause, some people are competent one day and not another. Additionally, someone may have problems managing their finances but can make reasonable decisions about healthcare. As a caregiver or concerned family member, it can be challenging to know when to intervene or even what to look for.
Be on the alert for some of these behaviors:
- Inability to make safe decisions such as wandering or getting into car accidents.
- Difficulty managing activities of daily living like using the stove safely. Your loved one may forget to eat, or doesn’t shower.
- Problems managing finances like giving money away, or succumbing to scams, and fraud. It is common for people with dementia to let strangers in the house, or authorize work that doesn’t need to be done. There have been reported cases of someone marrying their caregivers and signing over all of their assets to that person.
- Avoiding going to the doctor, refusing help, not taking medications correctly, or driving when not safe.
How Do You Get a Letter of Competency From a Doctor?
The ease with which you can get a letter of competency from a doctor depends on the kind of relationship you and your family member have with that person. If the relationship is casual, it might be more difficult for the physician to agree to write the letter. In that case, he or she may refer you to someone else to do an evaluation and provide the letter.
If you and your loved one have a good, close relationship with the physician, these are the steps to take to ask for a letter.
- First, determine if this is the only option to help keep someone safe. Are there other possible interventions such as in-home caregivers, a bill-paying service, or other support services like adult daycare or other respite care resources.
- Contact an elder law attorney to discuss the situation. A good attorney who specializes in guardianship can let you know whether it is worth pursuing a competency hearing. If it isn’t, there is no reason to get the letter or put your loved one through a court proceeding.
- If you do decide to ask for a letter, meet face to face with the physician if at all possible. Bring your family member with you if it won’t be too upsetting. When your family member is with you, consider discussing your areas of concern with tact and respect. Expect that your loved one may get upset or angry.
- If the physician does not already have a copy of your loved one’s advance directives, bring it with you. If the advance directive was recently signed, this could be a red flag for a physician. The National Center on Elder Abuse reports that the majority of financial exploitation comes at the hands of a family member.
- Once you have the letter, petition the court for guardianship and/or conservatorship. Some states require that the proposed protected person (the person being considered for guardianship) be present during the proceeding. This can be extremely emotional and upsetting for everyone involved.
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Getting A Letter of Competency From a Physician
Choosing whether to ask for a letter of competency from a physician requires planning and a thoughtful approach to creative problem-solving. In your haste to cope during a crisis, declaring someone incompetent can seem like the best solution.
As a concerned family member, take some time to consider what this step means and whether it is necessary. If, after thoughtful consideration, you decide to pursue guardianship, you will be assured you have made the right decision.
All of this discussion shows just how important it is to honor your wishes and your loved one's wishes. Whether you create a free, legal will online with FreeWill or you start a conversation with trusted relatives, these are the steps that matter.
- Norris, David MD, and Molly Clark PhD, and Sonja Shipley MD. “The Mental Status Exam.” American Family Physician. 15 October 2016. www.aafp.org/afp/2016/1015/p635.html
- “Statistics and Data.” The National Center on Elder Abuse. www.ncea.acl.gov/What-We-Do/Research/Statistics-and-Data.aspx