Who decides whether someone is competent or mentally capable of making their own decisions. In Calif.?

A POA is in the nature of a private contract. Therefore, the POA can set forth terms that impact when the agent may act. If the POA says nothing about competency but limits or conditions powers on lack of competence, that would be determined based on the judicial standard, I would think. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

Keep in mind that a doctor's statement, while it has weight is a medical and not a legal determination. Often the standard to trigger the POA is "incapacitated" whith no guidance as to what that means. Then the legal standard for conservatorships might apply. If a experienced elder law attorney drafted the POA it might have a specific standard such as a written certification by two licensed physicians.

California is struggling with competency issues. California recently reinforced rules that a diagnosis as having an illness which may effect competence does not mean the individual is not competent to act, but instead the specific abilities and disabilities of the person whose competence is challenged most be weighed. Under these rules a person with Dementia, Alzheimers, or schizophrenia is not necessarily legally incompetent. In California there are at least two different standards. To make a will or amend or make a trust in a way which is the equivalent to a will only requires that an individual be aware of who the natural recipients of their bounty are (their family and friends) and be aware of the nature and extent of their assets. Other actions require a higher level of competency, The actor must know the nature, purpose and consequences of the action taken at the time it is taken. This at the time - is the bone of much contention. In the case of a power of attorney , if a senior understands that he or she is giving the power to act and sign documents for them to another, if they understand that they may sign anything that the Senior could have signed then they are probably competent to sign it. The understanding at the time of action is a critical issue with Seniors with short term memory problems. They may, within the pocket in time of short term memory, have complete competence to make certain contractual decision, even though they may not remember making such a decision six hours later. A bigger competency issue arises from undue influence. A person's actions under undue influence is at the very least, voidable (cancelable) . Best wishes, Joel S. Weissler Attorney at law 2635 Camino Del Rio South San Diego, CA 92108 (619) 281-1888

When a client comes into the office to execute a POA the attorney assumes the client is competent to sign. The attorney should ask the client general questions and get a sense of whether the client appears to be aware of what he is doing. If the attorney has questions about the client's competence to execute such a document, he/she should take steps to verify the client's competence. An examination by a non-interested medical practitioner would be a good start. If you are a loved one who is concerned about competence you could bring your concern to the attorney's attention. Just keep in mind that the attorney represents the client so may not be able to talk much to you about the situation, but his ethical duties do not prevent him/her from hearing what you have to say.

I think my colleagues are answering two different questions, due to an ambiguity in the question. It's unclear whether the question was (1) "who decides whether a person is competent to execute (i.e., sign) the power of attorney ?" OR (2) "if a person has already executed a springing power of attorney, who decides when that person has become incompetent, and therefore the power of attorney should spring into effect?" I suspect that (2) is the question being posed, in which case, the answers from Attorneys Davis, Friedman and Mataele are most applicable.

As an attorney who practices in elder abuse cases (for Plaintiffs), and having done several Powers of Attorneys in the past, I highly recommend that any attorney who is asked to write a Power of Attorney for a client actually give that client a verbal test of whether he or she understands or has the mental wherewithal to understand what he/she is doing. In the firm I used to work for, we would ask the grantor of the Power of Attorney certain questions like, "Do you know what high school you attended?" or "Where did you and your spouse go on your honeymoon?" or "How many children do you have, and what are their names?" These are basic questions, but when you ask the series of questions such as these, you will find out fairly quickly whether the grantor of the Power of Attorney has any business executing a Power of Attorney. In my personal opinion, I believe it is incumbent on any attorney who practices in elder law to perform this type of verbal mental exam - especially if the attorney does not know the individual who will take on the Power of Attorney. I have actually worked with an attorney who had to turn a client away, only because he could not answer these types of questions. If the matter is in Court, then the judge has the responsibility to deem the individual competent - but only after a full-on competency hearing - and the reasons for a competency hearing are many. It is important to know however, that if one is seeking to bring an action as a plaintiff, then this is a matter that should be settled ASAP, to determine the plaintiff's possible status as a dependent adult or incompetent - at least before filing of the action.