Adult Protective Services (APS) investigator Darlene B., summoned by a call from a concerned neighbor to Ellen P.’s residence, discovered a pile of trash outside the front door. Inside the home, Darlene noted disconnected electricity, no running water and the overwhelming smell of urine and feces.

Ellen denied she lacked power and insisted the mess was temporary because she was hunting for a lost bill. Asked what APS could do to help her, Ellen claimed the only thing she needed was a limb removed from a tree in her yard. Despite these illogical disclosures, Ellen’s memory and orientation seemed to be intact. How can both family and professionals determine whether Ellen is incapacitated? How can they determine the services needed?

Under Texas law, an incapacitated person is an adult 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.

Fortunately for Darlene, her APS contracts with the University of Texas Health Science Center of San Antonio Psychiatric Services division, to make assessments of individuals exhibiting impairments similar to Ellen’s. Darlene requested a comprehensive evaluation of Ellen’s mental capacity. Central to that evaluation is what mental health professionals call “executive function.”

Although an individual may be able to recite what they need to do for themselves regarding hygiene, nutrition, medications, and safety, more important is whether they retain the “executive capacity” to follow through with the tasks required for each.

Texas law requires that before a person can be declared incompetent and a guardian appointed, a licensed physician must declare person to be incompetent through a Certificate of Medical Examination (CME). Unfortunately, the CME  by the physician is often completed following a far less comprehensive evaluation than the twelve-hour plus battery of testing Darlene was able to secure. Families faced with a situation like Ellen’s should insist upon an evaluation by a psychiatrist trained in assessing geriatric capacity to adequately determine the mental capacity, care and services appropriate for their loved one.  

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.