What Happens When a Loved One Becomes Incompetent?

Posted by Martin Heller Potempa & Sheppard, PLLC on October 18, 2019

Not everyone prepares for tomorrow. A horrific car crash or a blow to the head could be life changing. In some cases, it could mean a brief period of incapacity. However, what happens when a loved one becomes incompetent? This is where estate planning comes into play.

Some only associate estate plans with distribution of property after death. While there’s no question that preparing a will or setting up a trust are critical, there’s something else to consider. A severe injury or disease could rob an individual of his or her ability to manage their own affairs. So, what happens next?

There’s a chance you’re already prepared if you’ve met with an experienced estate planning attorney.  More than likely, you’ll personally feel at ease as you appoint someone in your stead to act as your power of attorney. You’ll even have the opportunity to select the extent of its use.

However, it could be that someone you love is now incapacitated and has no legal document appointing a personal representative. Sadly, it could be your adult child. However, that’s not to say that it couldn’t be an older relative as well.  You might need the court’s help in putting you in charge of even your spouse’s or parents’ affairs.

Personal Representative for Someone Incompetent – Estate Planning

In some cases, it’s a bit easier to recognize incompetence after something like a traumatic brain injury. However, there’s something else for consideration. Baby boomers are experiencing advanced life expectancies. With that, comes the threat of increasing memory and judgment issues.

It may not always seem so obvious.  Dementia is the overall term for diseases related to memory loss and problem-solving skills.  According to the Alzheimer’s Association, Alzheimer’s Disease accounts for 60 to 80 percent of cases related to abnormal brain changes that trigger mental decline.

In the beginning, it might seem that your loved one forgets a few names or events. However, you may notice a paranoia or an inability to take care of simple routines. Perhaps your loved one stops paying bills or giving away money. You may feel helpless and want to step in – particularly, if you are concerned about threats to a family member’s safety.

If your loved one has not executed a power of attorney, you will need the help of an experienced estate planning attorney. Unfortunately, it may be a difficult process for you on a personal level. There’s no doubt that you’ll be met with some resistance.

The court appoints conservators in cases where adults are unable to make decisions and perform necessary functions for their own well-being. According to  TN Code § 34-1-101, conservatorship proceedings “removes the decision-making powers and duties, in whole or in part, in the least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators.”

In the case where a loved one is incompetent and does not have a power of attorney, an experienced probate lawyer can assist you in this critical process.

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Concerned about the decision-making ability of a loved one? Martin Heller Potempa & Sheppard, PLLC can assist you with your options moving forward. Contact us to schedule an appointment.