The Issue of Competence

Many people confuse the meaning of competence for medical purposes and for legal purposes.

The standard for legal competence varies depending upon the document to be signed. For example, competence with respect to testamentary capacity (ability to make wills) requires that the individual be aware of the objects of his or her bounty, the assets that they own and the disposition to those individuals. Competence for power of attorney purposes requires that the grantor of the power understand that control is being given to the holder.

It is extremely important in preparing a power of attorney that the power not be joint, either several or together. A joint power of attorney gives rise to conflict, which should be avoided at all costs.

Some of the clauses in a power of attorney should include transfers when appropriate (i.e. the home to a child or children who provided the necessary care, the home to a spouse who does not go into a nursing home,) HIPAA language, revocation of a prior power of attorney, avoiding staleness and the ability to undertake general Medicaid planning.

A major issue, which will be discussed by Janice Chapin, Esq., at our upcoming webinar entitled: "Constitutional Aspects of Elder Law and Guardianship" is the mental state of an individual coming from another jurisdiction to New Jersey. As indicated in the seminal case of Shapiro v. Thompson 394 U.S. 618,89 S. Ct. 1322,22 L. Ed. 2d, if a person enters New Jersey, it would be unconstitutional to deny such individual benefits. The question to be addressed is that if the person came to New Jersey and were not competent, I believe the person would not be entitled to benefits, since the person's domicile would be the last jurisdiction in which the individual had competence. Another major issue is the definition of domicile. In this regard, I refer you to In Re Dorrance's Estate 309 Pa. 151, 163 A. 303, cert. denied, 288 U.S. 617 (1932). Although domicile is a subjective determination (a place where a person lives and intends to make a home,) such subjective termination is made by objective factors such as time spent in a jurisdiction, place of filing of income taxes, the jurisdiction in which a car was rented and similar matters.

Finally, from a legal point of view, if an individual meets the test of competence at the moment of signing of documentation, that would be sufficient. Therefore, it is an attorney's ethical obligation to make his or her own determination of legal competence in order for an individual to sign documents.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© November 2011, Post 171