A person may lack capacity if they display signs of confusion, consistently fail to remember simple things, can’t retain information or have problems processing information. A medical diagnosis of dementia can also indicate a partial or significant lack of capacity. Incapacity or lack of capacity may be temporary or permanent and although a physician usually provides insight into a person’s cognitive ability, a determination that a person lacks legal capacity must be made by a court.

If you suspect that someone you care about is losing capacity and needs assistance making decisions, you should discuss your concerns with them directly. You should always recognize and affirm their need to remain independent and autonomous and explain that you want to help them do so. Help them remain in control by making smart choices and recognizing when they need a little help. Find out how you can help him or her and explore whether they have an estate plan that appoints others to help with financial and medical decisions.
‍
If your friend or loved one does have an estate plan, inquire whether they feel comfortable asking the people they appointed in their plan to provide assistance. If your friend or loved one does not have an estate plan, you could suggest that they explore this option so they remain in control of who is providing assistance. If they don’t already know one, you could help them find an estate planning attorney so they can learn more about the benefits of creating a Power of Attorney, Advance Health Care Directive and other documents.
 
Broaching the topic of capacity with a loved one, especially a parent, can be difficult because losing capacity can trigger fear of losing independence and feelings of embarrassment and shame. Being mindful of these issues and approaching your loved one in a way that honors and recognizes their independence can make your loved one more receptive to your concerns.
‍
Estate planning attorneys must meet with their potential clients in a private setting, to ensure that they are not being unduly influenced and are making estate planning decisions independently.

When assisting a friend or loved one with finding an estate planning attorney, you should encourage them to call the attorney’s office themselves to make the appointment. If you are providing transportation for the appointment, you should not attempt to be part of their discussion with the attorney. In fact, the best thing you could do is deliver them to the estate planning attorney’s office, provide your cell phone number and then leave to do errands. If your friend or loved one wants you to participate in the meeting, let them know you’ll be available when you return from your errand.  

A person may be subject to undue influence if the person has diminished capacity and is making decisions that are out of character for the person or that seem illogical, such as making excessive gifts to new friends or caregivers, displaying unusual spending patterns, making changes to estate planning documents that are inconsistent with the person’s prior plans without good reason, or hiring contractors to do work unexpectedly or that is unnecessary.

If you suspect that a loved one is being unduly influenced you can discuss your concerns with your loved one, contact adult protective services to launch an investigation, or speak with an attorney experienced with elder abuse issues to determine what you can do to protect them from elder abuse.