Regular readers of this blog know that we often stress the importance of thorough estate planning. One of the steps we often discuss is establishing a durable power of attorney. This step ensures that if you become incapacitated or otherwise unable to make decisions about your own finances or other elements of your estate, a trusted friend, family member or associate of your choice can step in and make those decisions on your behalf.
Although this is a good step for all California residents to take in their estate planning, sometimes complications can arise long after the power of attorney is established — especially when it comes time for the designated person to actually make decisions. If someone doesn’t agree with them, he or she may question the competency of the estate holder.
Say, for example, that your childless aunt Sally gave your older brother power of attorney 10 years ago. She’s now suffering from dementia and it’s up to your brother to make financial decisions on her behalf, but you find him to be untrustworthy and worry he’s making the wrong choices for your aunt. California law states that as long as Sally was deemed competent when she established power of attorney, her current mental state doesn’t affect that choice.
How, then, is competency determined? California probate laws set the standards, which include the person’s level of consciousness, the ability to concentrate, short- and long-term memory, the ability to understand and communicate with others, the recognition of familiar objects and people, the ability to reason using abstract concepts, the ability to plan and carry out actions in his or her own self-interest, and the ability to reason logically.
If you suspect that even 10 years ago Sally wasn’t entirely competent, you may be able to challenge the power of attorney in court. In that case, a judge would want to speak with others who knew Sally back then and could verify whether she knew what she was doing when she chose your older brother. But no matter what your aunt’s mental state is now, if it’s determined that she was competent at the time, there’s little you can do about that decision she made a decade ago.
Source: Sacramento Press, “Ask the County Law Librarian — Determining Competency in a Durable Power of Attorney,” Coral Henning, Dec. 20, 2012