Do you need to consider writing a letter of competency? 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. These sensitive issues can lead to bitter disputes between family members over whether an aging loved one’s will, powers of attorney and other legal documents were valid. If you or your loved one has received the news that you are suffering from dementia or other problem that impacts mental capacity, it can be devastating. 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 simple step to a senior’s legal planning process can reduce the potential for unnecessary stress and familial discord down the road.
What a Letter of Competency Does
It is a good idea to obtain a letter of competency when a will, advanced directive, power of attorney, or other legal document is drafted. This can help dispel any disagreements about whether the person signing the documents had the mental capacity to make such decisions. While an attorney cannot help an incompetent individual create or change a document, the legal definition of competency is a bit different than the medical definition of competency. It is also wise to ensure that a person is both medically and legally competent to make decisions about their estate, finances, and healthcare so there is no doubt about the validity of the documents they sign.
Obtaining a Letter of Competency
Most people will request that their primary care doctor create a letter of competency because they would have seen the person over a course of several years and be able to recognize any changes in their baseline state. Other people may choose to have a doctor that specializes in mental health to create such a letter.
The letter from the doctor attesting to the mental capacity of their patient should be made on their letterhead and include the following:
- 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 healthcare, finances and legal matters
- The patient’s relevant medical diagnoses (e.g. Alzheimer’s disease, stroke, mental illness, developmental delay, etc.)
- Date of diagnosis for each relevant medical issue
- Physician’s contact information
While a doctor has likely completed a statement of mental capacity before, it is a good idea to have your estate planning attorney review the letter and ensure it meets all necessary legal requirements.
Documentation is Key
We never know whether a child, sibling, or other family members will attempt to attest some piece of legal documentation, and unfortunately, it happens more often than you might imagine. Many of these cases end up going through lengthy and costly guardianship proceedings. While it may seem excessive to seek proof of mental capacity, it is almost always better to be safe rather than sorry. The energy and time to obtain this documentation are minimal compared to the cost of a lawsuit, a guardianship proceeding or the emotional turmoil of 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 interest, and taking every precaution to carefully document changes in their health and financial status will ensure that your caregiving journey goes as smoothly as possible.