My Parents Are Getting Old? What Do I Do? What is Diminished Capacity?

Old Age versus Diminished Capacity:  Protecting My Loved One’s Legal Interests 

“My mom keeps forgetting things.”  “My grandpa has been in assisted living for years.”  “I’m worried about my dad’s health—both mentally and physically.”  “What if someone tries to take advantage of them?”  “Can I even do anything? Should I even do anything?”  These are questions that we ask as our loved ones grow older.  Growing old is a reality of life.  Often, family members worry about the financial situation of their loved ones.  Questions like, “How will she manage her money?” or “Should I take over her bank accounts?” or “Do I need to talk to an attorney?”

Dimished Capacity

Helping the elderly with memory loss and diminished capacity

In the legal field, words like “capacity,” “diminished,” “guardianship,” “conservatorship,” “hearings,” “wills,” “estates,” and “burden” come into play.  Here is a brief description of some of these legal concepts.

Diminished Capacity

Anyone over the age of 18 has the right to make legal decisions and enter into enforceable contracts.  This means that a person over the age of 18 has the capacity to sign contracts, sign a will, create (and sign) a family trust and sign any other legal documents.  However, when a person is under the influence of alcohol, the influence of medication or drugs, or has mental deficiencies, they will not have the capacity to sign legal documents.  Legally, this is person “lacks capacity” or has “diminished capacity” to sign a contract.  If a person signs a contract with diminished capacity, the Court will not find the document legal or enforceable.

Forgetfulness, Physical Weakness and Age

The Utah case law clarifies that traits associated with the elderly like forgetfulness, physical weakness, and any mental weakness are the natural consequences of aging.  An elderly person who is forgetful will not be legally declared to have diminished capacity.

Power of Attorney

Talk to your loved one about “power of attorney.” A power of attorney, gives a person decision-making power on behalf of the other person, if incapacity occurs.  A power of attorney does not need the approval of a judge.

If you have any additional questions regarding capacity and/or power of attorney, please call Melanie Cook Law at (385) 777-5940.




What does it mean to “serve” the other party?

Once we meet and discuss the issues of your case, we will draft a formal Petition.  You may have a Petition for Divorce, or a Petition for Separate Maintenance, or a Petition for Parentage, or a Grandparents Rights Petition.  The type of Petition (or Complaint) will depend on your specific type of case.

Once we finish the Petition, the next step is to “serve” the other party with that paperwork.   This is usually done by a Sheriff or a private individual (over the age of 18), who is not part of your case.  Generally, a Summons will be served with the Petition.  Most of the time, the paperwork is served upon the other party in person.  Service of the paperwork can take place at a person’s residence or work, or anywhere where the other party is located.  Personal service can even take place at the local Walmart, if that is where the other party is shopping at the time of service.

This “service” (also called “service of process”) is required by the Court to prove that a party has notice of the Petition and the beginning of a lawsuit.  Service of process allows the other party to respond to the Petition against him/her.

Once the service of process has been effected upon the other party, the Sheriff or process server will file a “Return of Service” or an “Affidavit of Service” with the Court.  The “Return of Service” will indicate the date, time and documents that were served upon the other person.