ABA Family Legal Guide

The Rights of Older Americans

A Right to Control Your Own Affairs

Durable Power of Attorney

Who decides whether I'm incapacitated?

You can specify how you wish to have your incapacity and mental status determined if the need should arise. For example, in your durable power of attorney, you can name a doctor to make this determination, or you can say that two doctors must decide whether you have capacity. Any doctor or clinical psychologist who makes evaluations of capacity should have experience in this area. If you provide no instructions, then a court might ultimately decide the issue, guided by generally accepted standards used by other courts in making these determinations.