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Eldercare and Legal Issues of an Incapacitated Loved One

Mature woman talking to financial planner at home This is a tough one. It breaks my heart when I see families unable to come to grips with the incapacity of a loved one. I really feel for them. I’ve been through it. Eldercare and legal issues can be overwhelming especially when you don’t want to believe incapacity is happening to someone you love. Unfortunately, inaction can be costly.

First thing I recommend is to gather your family members together and have a conversation. Discuss what a diagnosis of onset dementia or Alzheimer’s might look like for everyone involved. Convince the potentially afflicted loved one that it’s time to consult a professional to determine if they meet the medical and legal requirements to be considered incapacitated.

Now, this is crucial. There may be pushback, denial, even anger, but it’s still better to discuss it with them first. Don’t blindside them with a stranger at the door ready to turn their life upside down. Let them know that, sometimes, incapacity may be intermittent and is a result of issues like medication interactions, depression, and untreated urinary tract infections. Also, try to assure them that while changes may have to be made, it doesn’t mean that their life is over. In fact, sometimes if you just downsize and simplify you can relieve stress and some of the symptoms of dementia.


Legal terminology is vague and confusing. Often times, terms like incompetent, unsound mind and incapacity are used interchangeably, but can dramatically affect the rights of the afflicted. However, a typical definition of an incapacitated person is “one who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” To become a legal custodian or guardian for a parent or relative who needs eldercare, a judge will require expert testimony and reports concerning physical and mental acuity. This type of intervention, while sometimes very necessary, takes away your loved ones freedom. You should only consider this route as a last resort. In other words, are you in fear for their safety.

There are less invasive legal protections that can be put in place. For example, a loved one should, well in advance, create a durable power of attorney so that a trusted individual may act when he or she becomes incapacitated. A medical power of attorney and directives to physicians are also very helpful. Also, consider an up-to-date will and estate plan.



If you are unsure of your loved ones ability to take care of themselves and want to understand what an eldercare specialist will consider, here is a helpful checklist. Can they:

  1. Administer her or his own medications
  2. Engage in activities of daily living such as personal hygiene, bathing, and dressing
  3. Engage in shopping, food preparation, self-feeding, and housekeeping
  4. Safely operate a motor vehicle
  5. Manage a bank account and/or retirement funds, and pay utility bills and other household expenses
  6. Vote in an informed manner
  7. Make appropriate decisions concerning marriage or intimate relationships
  8. Determine a place of residence and residential needs and keep the residence appropriately cleaned and repaired
  9. Communicate via telephone or other technology
  10. Collect and appropriately respond to mail or other communications
  11. Recognize and avoid common scams and frauds
  12. Recognize the need for and consent to medical and dental treatment

Remember that assistive devices, accommodations, and part-time caregivers will be less restrictive forms of eldercare than legal guardianship and institutional living. Many times, this is all your loved one will need so put their mind at ease. No matter what the challenges that they may have, you are there to face them together. Provide them with as much dignity and freedom as possible.

If you’re looking for additional resources on eldercare and related subjects go to

If you’d like to stay connected, you can find Toni Patillo on, twitter: @tonipatillo and email: toni(at)tonipatillo(dotted)com(dotted)