Competency Evaluation

About 60,000 competency evaluations are ordered by the courts yearly in the US, and only about 20% of them result in a finding of incapacity. Most of these are for criminal cases where approximately 12,000 defendants are found not competent to stand trial due to mental illness, intellectual disability (mental retardation), etc. In the case of seniors with cognitive decline there is an increasing need for such evaluations. In an effort to head-off legal battles, competency assessment is “advised” before an attorney assists a client in making/changing a Will or engaging in any other legal matter. Legal precedent to protect elders has evolved in Common Law in Britain, Canada and the US to the point where this is referred to as the “Golden Rule” in Elder Law. More about that later.

Consider that by 2030, 1 out of 5 people in the US will be 65 or older. Seven percent will be ≥80 and 8.5 million will be “old old” at >85, and the vast majority will be female. Our Memory Center is based on Cape Cod, in Massachusetts where:

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Estate Planning is more essential then ever for Americans. The changes in our country’s demographics over the last 40 years are stunning. Planning for old age is complicated by the fact that more than a third of people in the age range when such planning is done are now single. Living on one income, especially a fixed one after retirement, is leading to increasing senior poverty. Unmarried baby boomers are 5x more likely to live in poverty than their married counterparts, and they are 3x more like to receive food stamps, public assistance and/or disability payments. We advise all our patients and families to contact an Elder Law attorney, ideally a member of the National Academy of Elder Law Attorneys, Inc. (NAELA) Massachusetts Chapter or MassNAELA.

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In addition to the increases in age and singlehood affecting our population, recognize that: Among Americans over 85: 60% of men have spouses, while only 5% of women have spouses. Also, of Americans > 65: 75% below the poverty line are women, while women’s risk of age-related diseases is 2.5x the rate of men. While this underscores the need for Elder Law, especially for women, attorneys need to realize that with divorce and remarriage increasingly common (as people age much longer) dealing with “blended” families increases the complexity of Will preparation and estate planning. Increased complexity equals more opportunity for disputes down the line, so following the Golden Rule has become essential.

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We offer comprehensive evaluation, consultation and other services to attorneys and the courts. We do Medical Certificates for guardianship and/or conservatorship, and Roger's Monitor Treatment Plans when needed. We do these within 30 days of your planned date to petition the court.

We also do Clinical Team Reports for establishing the need for guardian and/or conservator for individuals with intellectual disabilities. We provide the psychological and licensed social worker evaluations and work in conjunction with the individual's primary care provider (doctor) in completing these.

Often we are asked to review case notes and medical records by attorneys whose client's are questioning the competency of a patient who has altered a will or changed their healthcare proxy or power of attorney. This can involve depositions and expert witness work as needed. See the section on the Golden Rule, here.

The Golden Rule
The Golden Rule came out of British and Canadian common law and is now practiced by attorneys across the US. Basically, the rule says that any individual who is either aged and/or has been ill should be evaluated before they make changes to any testamentary or other legal documents. We specialize in "capacity" assessments which are then used by the courts to determine competency in people. There are different levels of capacity expected depending on the complexity and importance of the decision the senior is making. There are measures of Financial Capacity, Testamentary Capacity and Medical Decision Making Capacity. We assist attorneys to follow
The Golden Rule in their work with seniors.

Call us and we can discuss the type of evaluation that may be helpful and costs.

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