When your parent is diagnosed with dementia, your whole family is affected, and usually, a family member must step in to manage their affairs. That’s where a durable power of attorney (DPOA) can offer vital support. However, you must follow the correct procedures because the process can get complicated depending on the stage of your parent’s condition. That’s why we’ve created this guide.
Read on to learn how to obtain power of attorney for a parent with dementia and get pro tips on simplifying the process.
Key Takeaways
A durable power of attorney empowers you to make medical and financial decisions on behalf of your parent, ensuring they receive the care and asset management they need.
Before signing a DPOA, your parent's ability to make informed choices may need to be evaluated.
If a power of attorney can't be established because your parent lacks the ability to sign it, you may be able to obtain a conservatorship.
Durable Power of Attorney for a Dementia Patient
When your parent suffers from dementia, a durable power of attorney (DPOA) is often required.
A durable power of attorney empowers a trusted family member or friend to make medical and financial decisions on behalf of your parent. This ensures they get the care they need and that their assets are appropriately managed when the individual is no longer able to make their own decisions.
Ben Michael, an attorney at Michael & Associates in Dallas, explains: “This is a popular choice for adult children with aging parents who are unable to communicate or advocate for themselves, like if they have dementia.”
As an elderly parent develops dementia, they may become forgetful or disoriented — making decisions about health or money harder.
According to Mark Hirsch, co-founder of Templer & Hirsch in Aventura, Florida, that’s when a DPOA can offer a major lifeline.
“Getting a DPOA can ensure that your parents' funds, medical care, and legal issues will be handled when they can't,” he says. “It stops possible financial abuse and ensures that their wishes are carried out.”
Related: Estate Planning for Elderly Parents
Delegation of Power of Attorney: Early-Stage Dementia
Before any medical crisis, including a dementia diagnosis, older people should identify their power of attorney and get the paperwork made out. If your parent hasn’t yet been diagnosed with dementia, you can work together to establish a power of attorney.
Meet with an attorney beforehand. It’s better to consult with an attorney well-versed in elder law issues.
In general, a person with dementia may sign a power of attorney designation if they comprehend what the document is, what it accomplishes, and what they are signing. Most elderly people with early-stage dementia will opt to make this distinction.
Delegation of Power of Attorney: Mid- to Late-Stage Dementia
Things may get more problematic if there is no power of attorney designation and your parent is further along in the disease's progression.
If your parent can’t comprehend the power of attorney form and procedure, the family will need help from the local court.
A judge may hear the case and appoint someone in the family (or a court designate) as a conservator or guardian:
A conservatorship empowers the court-appointed designee to make financial choices for your parent.
A guardianship empowers the court-appointed designee to make healthcare choices for your parent.
The process of appointing these individuals can be time-consuming, but it may ultimately be required to advocate for your parent and their wants.
How to Tell if Your Parent Is Unable to Make These Decisions
The ability to make critical judgments is referred to as mental capacity. Your parent may lack mental capacity if they are unable to comprehend or remember the details required to make a choice.
Before signing a POA, your parent's capacity to make informed choices may be evaluated.
An assessment exam, such as the Hopkins Competence Assessment Test, may be used to do this. The test findings may be used with a psychiatrist's evaluation of your parent.
Difficulty of Creating a Power of Attorney for Someone Suffering from Dementia
Establishing a power of attorney for someone with dementia or Alzheimer's is not always difficult, but there is one important factor to remember.
To form a legitimate POA, the grantor of the power of attorney — in this example, your parent suffering from dementia — must be able to comprehend what they are signing. This is done to protect the grantor against elder abuse, corruption, and other crimes.
For the power of attorney to be legal, you may need a note from a physician certifying that your parent can still comprehend what is being signed.
If your parent has already reached a point in which they can’t understand what they’re signing, the process of creating a Durable Power of Attorney becomes a bit more complicated.
Travis Christiansen of Boyack Christiansen Legal Solutions in St. George, Utah, explains: “Durable power of attorney cannot be obtained from someone if they are incapacitated.
"You would need to file to become their guardian in court, have one-to-two medical doctors who can examine them and could testify that they are not competent, and have a judge agree with them and appoint you as the guardian.”
Why a Parent Needs a Power of Attorney If They Can Comprehend What They Are Signing
It makes sense to establish a power of attorney before your parent's capacity to sign and make a legal one fades. In these cases, a power of attorney is often made "springing," meaning it only takes effect when the grantor can no longer show the capacity to make these choices.
In this situation, the person permitted to make choices for your parent can only do so if your parent's mental dexterities are called into doubt.
What to Do If No Power of Attorney Is Established
If your parent is unable to make their own choices, they cannot sign a power of attorney. Since this legal document gives another person critical decision-making power, your parent must fully comprehend what they are doing while signing the POA.
A conservatorship may be considered if a power of attorney cannot be given because your parent cannot legally sign the document.
Conservators may serve as a power of attorney agent, making medical and financial decisions on your parent's behalf. However, becoming a conservator takes time and often entails an expensive legal process.
Nevertheless, if you want to assist your parent who is unable to make choices for themselves, this judicial process may be worth the effort. However, keep in mind that a conservatorship may be time-consuming and should be avoided if possible; it is a much more intrusive choice than a power of attorney.
What to Do If Your Parent Refuses to Accept Assistance
A power of attorney is not an option if your parent with dementia rejects your help.
Even if you manage to talk them into accepting your help, this will be deemed undue influence, and a court may revoke a power of attorney. You must instead petition the court for guardianship.
This requires you to have your parent evaluated before filing in court to become their guardian or conservator. Next, the court will need to schedule a hearing and have experts testify before the judge is able to make a decision.
“If the parent doesn’t have capacity, they could be considered a danger to themselves and need someone to make decisions for them,” says Travis Christiansen of Boyack Christiansen Legal Solutions.
“However, even people with dementia often have times where they seem like they know what they are doing so if this is the case, and they refuse, it is almost impossible to force them if a judge won’t agree they are incapacitated.”
Is It Possible to Challenge a POA?
If you’re worried about your parent and believe the agent is not operating in their best interests, you should consult with an elder law attorney. If the present agent is abusing their power of attorney, a lawyer may be able to revoke it.
That said, it’s important to remember that challenging a durable power of attorney can take some time, so it’s not a decision that should be taken lightly.
Katie L. Lewis, a family law attorney in Dallas, explains: “You must prove the agent acted improperly or the parent lacked capacity when signing. Challenging an existing power of attorney often does more harm than good. The court process can be lengthy while your parent's condition continues to decline without proper oversight and care.”
When in doubt, it’s worth talking with your attorney or your parents' attorney to discuss the situation and potential pathways forward.
Moral Considerations
You have not only legal duties as a power of attorney but also ethical ones. Most importantly, you should recognize that being a trustee entails a great deal of responsibility. It requires you to follow your parent's explicit conditions.
Be sure that you are not substituting your preferences for those of your parents. Make decisions that are consistent with your parents' directions. You are required by law to keep accurate records of spending and other financial activities.
Get informed consent for medical interventions. Informed consent is the process of telling your parent about a medical alternative and obtaining their permission.
If your parent is still able to make their own decisions, it’s worth asking them to provide detailed directions relating to a range of different medical and financial scenarios to offer guidance in the future.
Again, this is where a platform like Trustworthy can offer a helping hand — enabling you to collaborate with other users and share your parent’s wishes with other family members so that everyone understands the decisions you’re making on their behalf.
4 Suggestions to Make the Process Easier
Here are some actions you can take right now to acquire a power of attorney, including your parent and other family members.
1. Understand What’s at Stake
Being granted Durable Power of Attorney comes with a great deal of responsibility. Whoever is awarded DPOA will have complete control over your parents' money, livelihood, and health.
Take the time to learn about the responsibilities that come with a DPOA.
2. Communication Is Key
Next, decide who is best suited to take on the DPOA obligations and ensure they are aware of them.
After a DPOA has been created, make sure you’re using a secure and accessible storage solution like Trustworthy.
Trustworthy is a dynamic Family Operating System® that enables you to upload and store all of your family’s important documents in one place. Not only do you benefit from 256-bit encryption and multi-factor authentication, but you can also grant secure access to other family members of your parent’s attorney to ensure everyone is on the same page.
3. Expect Some Pushback
Nobody wants to relinquish control of their own life or business. Your mother or father may be reluctant to discuss the specifics of their financial or health conditions with you. Please be patient with them.
4. Seek Professional Guidance
Choose a lawyer who specializes in elder law. Having completed the preceding steps ahead of time, a lawyer will help the rest go smoothly.
Of course, as mentioned, if your parent has severe dementia, you’ll need to arrange for a doctor's evaluation to certify their level of cognitive functioning. The doctor may also be called to testify in court. Only a court order can give Power of Attorney in these situations.
Frequently Asked Questions
Who is legally responsible for a person with dementia?
After an individual becomes unable to make their own decisions, their legal responsibility rests with their conservator, guardian, or both.
How do you know what stage of dementia someone is in?
There are three stages of dementia: early, middle, and late. Each stage has its own discernable traits, but it’s critical to consult a doctor to assess each individual.
Can you get power of attorney for someone who lacks mental capacity?
No. If your parent is unable to make the decision about granting a durable power of attorney, you’ll need a court to appoint a conservatorship.
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