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.