What to Consider when You Believe a Relative is not of Sound Mind

As people age, their mental capacity often declines. It's hard to see a family member struggling with basic tasks, but it can be equally hard to know what to do about it. This guide explains your legal options and offers suggestions for reaching out for support.

Ready to start your estate plan?

Trustpilot star rating bar
A woman checking her estate planning documents and analyzing the online research she has done from her laptop on the factors to consider when you believe a relative is not of sound mind.

Contents

Updated on: June 12, 2024
Read time: 3 min

As people age, their mental capacity often declines. It's hard to see a family member struggling with basic tasks, but it can be equally hard to know what to do about it. This guide explains your legal options and offers suggestions for reaching out for support.

Power of attorney is your best financial defense

A durable financial power of attorney appoints someone to handle financial and legal transactions for you if you're not able to take care of them yourself. Durable powers of attorney can be structured to be effective immediately or only if you become incapacitated.

Powers of attorney are often signed along with other estate planning documents. For example, when a person with a power of attorney becomes incapacitated, the agent named in the document (also known as the “attorney in fact") steps in and can do anything that the document allows, such as handling financial transactions and signing contracts.

A power of attorney is the smoothest way for a family member to take over when a relative can't manage his or her own affairs anymore. To get started:

  • Find out if your relative already has a power of attorney. It's common to sign powers of attorney along with a will, and to keep the documents together. Try looking for your relative's will, and you may find a power of attorney too.
  • If you can't find a power of attorney, your relative may be willing to sign one now, provided they still have the mental capacity to do so.
  • If your relative's mental state has deteriorated too far or they refuse to sign a power of attorney, you may have to go to court and seek a guardianship or conservatorship.

Mental capacity and powers of attorney

To be mentally capable of signing a power of attorney, you must be able to understand the nature and quality of the transaction, along with its significance and consequences.

If a power of attorney is prepared by a lawyer, the lawyer will ask questions and assess your relative's capacity to sign the document. If someone later contests the document's validity, the lawyer can testify about its signing and the person's mental capacity.

Guardianships and conservatorships

If a power of attorney isn't an option, the alternative is to go to court and seek to have your relative declared mentally incompetent. This involves an evaluation by a physician or other expert and a hearing. The court will appoint someone, who may be called a guardian or a conservator, depending on your state, to handle your relative's affairs.

The public court proceeding can be expensive and difficult emotionally for the relative you're trying to help and your family. Unless your relative nominated someone to serve as guardian or conservator when he or she had capacity, they do not get to choose who will handle their affairs.

Finding help with housing and caregiving

  • Financial and health care powers of attorney only extend to the matters specified in the written documents. That typically doesn't include forcing a family member to move from their residence to an assisted living or another facility, which usually requires a conservator or guardian.
  • To avoid a court proceeding or a crisis, be proactive in encouraging your elderly relative to consider other living arrangements, and realize that convincing them may be a long process.
  • If your loved one is in the hospital or a rehabilitation facility, meet with their social worker, who can help develop a care plan and connect you to community resources. You can also find help and resources at eldercare.gov.
  • If there are hygiene and safety issues, your local social services office can perform an assessment and recommend appropriate resources.

A financial power of attorney makes it easier for family members to take over a relative's financial and legal affairs, if that becomes necessary. Unfortunately, it won't take care of everything, so it's also important to get support elsewhere.

Ready to start your estate plan?Start My Estate Plan
Twitter logoFacebook logoLinkedIn logoReddit logo

This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.

70 days ago
Trustpilot star rating bar

legal zoom is the way to go

The representative was very knowledgeable about how long it takes to transfer a deed from one person to the next he explained everything and he was very pleasant when speaking to him

Ross
70 days ago
Trustpilot star rating bar

I find that LegalZoom has all the…

I find that LegalZoom has all the answers if you're starting a business an LLC and incorporation or you're doing a trust or a Will. These are the people you want to trust don't go to an expensive attorney you're just throwing your money away. Legal soon gets five stars!

Sean Christopher
70 days ago
Trustpilot star rating bar

I spoke to the representative today about a Trust...

I spoke to the representative today regarding a question about an existing Living Trust. She was very helpful - told me exactly what I needed to know and how to accomplish it. As a representative in the Financial field I guide clients all the time on where to get documents done right - and its always LegalZoom - easy and effecient!

Gareth
79 days ago
Trustpilot star rating bar

We could not be more Pleased with the…

We could not be more Pleased with the help and service we had during the up dating of our Living Will and Advanced Directive

Richard Poulton
82 days ago
Trustpilot star rating bar

Legal Assistance for the rest of us

Legal Zoom has made it easy and affordable for us to create an LLC, a Will, and a Trust for our families.

K Chapman
85 days ago
Trustpilot star rating bar

pleasant and willing representatives…

pleasant and willing representatives ready to help me navigate through your system and supply attorney contact information for my legal questions for my last will & testament

Mark Impink
85 days ago
Trustpilot star rating bar

LegalZoom .com has exceptional, real, staff to help. I met one!

I purchased multiple accounts to update both our Living Wills and Estate Plans. After utilizing LegalZoom.com’s user-friendly and intuitive platform for these legal documents, I found it necessary to call for clarification on some information within our account. I spoke with Sandra Balderas, who expertly addressed the mistakes I had inadvertently made. Her professionalism and friendliness greatly enhanced the experience. I realized that LegalZoom is not only a straightforward website to navigate for such complex matters, but it also boasts exceptional employees. Thank you, LegalZoom.com, and especially Sandra Balderas, for guiding me through the process. I’m thrilled to have discovered LegalZoom.com.

Max -Phoenix, Arizona
85 days ago
Trustpilot star rating bar

Sarah was most helpful today regarding updating my estate plan

Sarah was most helpful today regarding updating my LZ docs created 3 years ago. She made sure I had all the information I needed, not just what I asked for. Thank you Sarah!

Diane Floyd
91 days ago
Trustpilot star rating bar

Quick and easy experience creating a…

Quick and easy experience creating a will package.

Kristin Steel
96 days ago
Trustpilot star rating bar

Used them past 10 years

Used them past 10 years. I needed another will and power of attorney.

MERLYN C
96 days ago
Trustpilot star rating bar

Tammy was wonderful and very…

Tammy was wonderful and very knowledgeable. It's because of her that I am going to open a living trust with legal zoom. She was great. Thank You

Erin
104 days ago
Trustpilot star rating bar

Pleasant Experience

Patience and weel given explanation about the process of how a "Living Trust" & "Deed" works after transitioning and guidance on how to contact an attorney whenever I need legal advice.

Sharron Martin
106 days ago
Trustpilot star rating bar

It was a breeze to deal with Legalzoom…

It was a breeze to deal with Legalzoom and finished my estate plan within an hour!! Thanks again

BT
110 days ago
Trustpilot star rating bar

Great team…

Mark and Legal Zoom make estate planning affordable and attainable.

Christopher Maginnis
142 days ago
Trustpilot star rating bar

Living Will & Forming my LLC

I have used Lega Zoom for several items, including my living will and items to form my LLC for my business. It's fast, easy, and thorough. The customer service is fantastic! I am working with David on a few items for my will,l and he has been a delight. He follows up when he says he will and is incredibly helpful. I highly recommend this company.

Kristen J
154 days ago
Trustpilot star rating bar

Nadia made it very easy for me to make…

Nadia made it very easy for me to make a decision to sign up and create my estate planning documents with legalsoom. She was very professional and knowledgeable about the package that I chose. She also offered her direct contact for any future questions I might have.

Melita D'Anna
163 days ago
Trustpilot star rating bar

Kylie helped me to review my history of…

Kylie helped me to review my history of trying to complete my estate plan and contacting a legal advisor that comes with my account. She was patient, knowledgable, and helpful.

Paula
167 days ago
Trustpilot star rating bar

I have worked with Mark Champ on… Last Will & Testament, Living Will, Quit Claim Deed

I have worked with Mark Champ on several documents I needed and every time he has provided me with every thing I needed and with so much graciousness and knowledge. It has always been such a pleasure working with Mark!!!!!!!!!!!!!

Cathy Donaldson
202 days ago
Trustpilot star rating bar

Most Dedicated Representative!

Patti Green was the most informative person in guiding me through the process of completing my estate plan . She was always there for me to answer my questions and give excellent advice . Also , she was very polite and considerate ! Legal Zoom is so fortunate to have Patti on their team . Thank you , Patti for all of your assistance and kindness !

Priscilla Page
280 days ago
Trustpilot star rating bar

Patti Green is GREAT!

Ms. Patti Green walked me through the Estate Planning process. She was very professional, patient and kind. Planning for when you are no longer here is very intricate and difficult. Working with Ms. Green helped give the assurance that I am doing the right thing for myself and loved ones.

TRINESSA
Rated4.6out of 5 based on23,915+ reviewson

Showing our favorite reviews