Lasting Power Of Attorney
A lasting power of attorney is a legal document that allows you to choose a person you trust to act on your behalf if you’re no longer able to make your own decisions.
This person is referred to as your attorney and must be over 18 years old.
You may think that if you’re married or in a civil partnership, your spouse would automatically be able to deal with your bank accounts and pensions, or make decisions about your care if you’re no longer able to.
But this isn’t true. Without an LPA, your spouse wouldn’t be able to act on your behalf.
An LPA can only be used after it’s been registered at the Office of the Public Guardian .
There are 2 types of LPA covering:
- property and financial affairs
- health and welfare
You can choose to do both LPAs at the same time, or just one. You can choose the same person to be your attorney for both. Or you can have different attorneys.
Act Earlier Rather Than Too Late
It’s true that no one really likes discussing these matters. It is equally true that by not discussing them, clients and their families often end up in a worse place, an angrier place, than they would have been had they dealt with these uncomfortable issues before any potential dementia arose.
And families are left to wonder, and indeed argue, about what the family member with dementia would have wanted. There is no solid answer for this. But if your loved one signs these important documents before any dementia sets in, their intent can be made pretty obvious.
Regardless of the stage in which you or a family member may be, we welcome you to contact our Northville and Brighton estate planning firm with your questions. You may also request a free consultation by completing our “Contact Us” form.
Can A Person Showing Signs Of Dementia Sign Legal Documents
by Susan Grissom | Mar 15, 2022 | Elder Care, Estate Planning |
The short answer to this question is, It depends. Alzheimers disease, Parkinsons disease, chronic traumatic encephalopathy and other illnesses that cause memory loss often take their time affecting a person. In the early stages, a person might have the capacity to sign contracts, drive, and have very little memory loss and other effects of the disease. As long as your loved one is deemed mentally competent under the law, he or she can sign legal documents.
Creating an Estate PlanNo matter what age you are, you should have an estate plan in place. Even in your younger years, an accident or an unexpected sudden illness could incapacitate you. Without an estate plan, the courts will assign someone to handle your affairs, and it might not be the person you would want.
Creating an estate plan, including powers of attorney for finances and an advanced directive medical, allow you to name the person or persons to handle your affairs and make medical decisions for you. If you become incapacitated, you cannot sign a will or create a trust, which may lead to a more complicated probate process should your illness cause your death as well as a more complications during your lifetime.
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Can A Person With Dementia Sign A Will Or Trust
The test for whether a person, including a person with dementia, has the ability to sign a document relating to the disposition of their estate is :
Michigan courts have held that “weakness of mind and forgetfulness are insufficient to invalidate a will if it appears that the mind of the testator was capable of attention and exertion when aroused and was not imposed upon.”
Scenario : The Person Plans Ahead And Has The Necessary Powers Of Attorney In Place
This is the best-case scenario when a person completes the necessary powers of attorney before dementia becomes an issue or if their doctor is able to certify that theyre still mentally competent.
Anderson says there are multiple benefits when advance planning is done, First, the person can make informed decisions about who they want to appoint as their agent to make health care or financial decisions for them if they are unable to do so.
Second, the person is able to assist in creating proper powers of attorney documents and decide whether the powers should be effective immediately or upon their incapacity.
Additionally, any of the documents may be amended or revised as long as the person is mentally competent.
Taking these measures often eliminates the need for a court-supervised conservatorship or a guardianship in the future.
Read Also: Is Senility The Same As Dementia
How To Set Up An Lpa
An LPA can only be set up by a person who has mental capacity. This means that they can understand information, weigh it up, retain the information for as long as is necessary to make the decision, and communicate their decision.
The steps are:
An attorney needs to be 18 or over. They could be a relative, a friend, a professional e.g. a solicitor, or a spouse or partner. The applicant should choose someone they trust, who manages their own affairs well, and who is happy to be the attorney.
It is possible to appoint the same person as attorney for both types of LPA. An attorney for an LPA for property and financial affairs cannot be subject to a Debt Relief Order or currently bankrupt.
The person applying for the LPA can have more than one attorney for example, their children. If so, the attorneys can make decisions together or separately , or a combination of both in different circumstances. If jointly, both attorneys must always act together, agreeing all decisions and both signing documents. If jointly in some matters and severally in others, then the applicant can decide that certain decisions require all attorneys to agree, but in other decisions they can act independently. For example, the applicant might decide that all attorneys must agree to selling property or decisions about medical treatment, but they can decide independently of one another for day-to-day decisions such as diet or dress.
The forms need to be signed by:
Is It Difficult To Make A Power Of Attorney For Someone With Dementia Or Alzheimer’s
It is not necessarily more difficult to make a power of attorney for someone with dementia or Alzheimers, but there is one crucial thing to know. The person who is the grantor of the power of attorney in this case, the person who is suffering from dementia or Alzheimers must be able to understand what they are signing in order to create a valid POA. This is to protect the grantor from instances of elder abuse, graft, and other crimes. Making sure the POA is legal in this situation can be tricky. You may need a letter from a physician stating that the grantor can still understand what is being signed for the power of attorney to be valid.
If the grantor is still able to understand what they are signing, why would they need a power of attorney? It makes sense to make a power of attorney before the grantor loses the ability to sign and create a legal one. Sometimes, in these situations, a power of attorney is made springing, meaning it only goes into effect when the grantor can no longer demonstrate the ability to make these decisions. In this case, the person who is granted authority to make decisions for the grantor can only do so when the grantors own abilities come into question.
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Dementia And The Durable Power Of Attorney
The durable power of attorney allows one to appoint a person or firm to act as his or her agent in financial matters. In the case of a person diagnosed with dementia, the power should become effective upon signing. So called, Springing Powers of Attorney, which only activate if two physicians find the signer to be incapacitated, will create an unnecessary level of stress and delay for the agent, who must get two physicians to examine and issue affidavits so that banks and other financial institutions will allow the agent to act. Given the bureaucratic nature of many banks today, it will be extremely difficult for the agent to be recognized as having power of attorney under a Springing Power of Attorney.
The capacity to sign a power of attorney is the same required to sign a simple contract. The signer must understand that someone, called an agent or attorney-in-fact, will have the authority to control all of their financial matters, what their financial matters are, and how an agent can exercise their authority. Some have said that this level of capacity is less than that required to sign a will.
Again, a wise person will get that letter from a physician stating that the dementia patient has the capacity to sign a power of attorney, beforehand. If it is the physicians opinion that the patient lacks capacity, then a guardianship action should be filed as soon as possible.
Mental Capacity And The Mental Capacity Act
Mental capacity means being able to understand, remember and use information so you can make decisions about your life.
You may find you’re perfectly able to make decisions over what to buy from the supermarket or what to wear, but have trouble with understanding more complex financial issues.
Another person can’t decide you lack mental capacity because they think you have made a bad or strange decision.
Only a healthcare or another qualified professional can decide if mental capacity is lacking.
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Can A Person With Dementia Sign Other Documents
A person with dementia may need to sign other documents like a deed, a power of attorney, a health care proxy, a contract for sale, etc. Legal practitioners generally agree that the standard of ability to sign such documents is slightly greater than for a will or trust. And the reason seems to be that often these documents will be dealing with specific property or a specific issue.
As your estate planning attorney, we would obtain at least one physician’s report and would carefully and slowly discuss the transaction with the client.
To sign any of the above documents, the person needs to be competent. If they are determined to be incompetent, any document they sign will have no legal effect. However, just because one exhibits early stages of dementia does not necessarily mean they are yet incompetent. For example, a person may forget the date and have trouble remembering their telephone number, but remember many other important facts. But clearly one presenting any traits of dementia is a warning to be very cautious.
As your estate planning attorney, we would be obtaining at least one physician’s report, and perhaps two. We would carefully and slowly discuss the transaction with the client. We might videotape the signing as further evidence of competency.
As a practical matter however, by the time most people become concerned that a person might be suffering from dementia, their competency to sign legal documents is likely compromised.
Capacity To Make And Execute A Will
The mental ability to make and execute a will is called “testamentary capacity.” Wills often are challenged when it is suspected the “testator” — the person who signed the will — lacked testamentary capacity at the time .
Statutes and case law may vary among different jurisdictions, but testamentary capacity generally requires that the testator was aware of the following when signing the will:
- The extent and value of their property
- Those who are the natural beneficiaries of their estate
- The disposition he or she is making
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Can A Person With Alzheimers Sign Legal Documents
- Alzheimers disease, Assets, Cognitive Illness, Competency, Dementia, Documents, Elder Financial Abuse, Elder Law, Estate Planning Attorney, Guardianship, Incapacity, Power of Attorney
If a loved one has been diagnosed with Alzheimers disease or any other form of dementia, it is necessary to address legal and financial issues as soon as possible. The persons ability to sign documents and take other actions to protect themselves and their assets will be limited as the disease progresses, so theres no time to wait. This recent article Financial steps to take when dealing with Alzheimers from Statesville Record & Landmark explains the steps to take.
Watch for Unusual Financial Activity
Someone who has been sensible about money for most of his life may start to behave differently with his finances. This is often an early sign of cognitive decline. If bills are piling up, or unusual purchases are being made, you may need to prepare to take over his finances. It should be noted that unusual financial activity can also be a sign of elder financial abuse.
Designate a Power of Attorney
An often-overlooked detail in cases of Alzheimers is the beneficiary designations on retirement, financial and life insurance policies. Check with an estate planning attorney for help, if there is any question that changes may be challenged by the financial institution or by heirs.
Cost of Care and How It Will Be Paid
Last Will And Testament
Many people are surprised to find out that a person with Alzheimers disease or another form of dementiaeven one currently under legal guardianshipmay still have what is called testamentary capacity or the legal ability to make a valid will.
Under the laws of most states, a person is considered competent to sign a will if they meet certain standards. A lawyer must meet with the individual in question to conduct an assessment of mental capacity using the following criteria. If the attorney determines that the client is incapacitated, then they must refuse to prepare a will.
General Requirements for Testamentary Capacity
- The testator must know the natural objects of their bounty .
- The testator must comprehend the kind and character of their property .
- The testator must understand the nature and effect of the act .
- The testator must be able to make a disposition of their property according to a plan formed in their mind.
Also Check: Etiology Of Dementia
Can A Person With Alzheimer`s Sign Legal Documents
Even those who love them can`t take care of them for sure. There is a need to determine how care is provided, which care facility has the right resources for a person with dementia, and how to pay for that care. An estate planning lawyer in elder law can help the family navigate the process, including protecting family assets through the use of trusts and other planning strategies. This gentleman`s daughter lives in the same city and is the one who oversees his situation and care. She does her shopping, hires people who watch her every day, takes her to doctor`s appointments, writes her checks and helps her in other ways. She also talks with him over and over again about how her other two children don`t deserve to be with her home and bank accounts, how she really should be the one who benefits from his estate, and how her late wife always wanted her to inherit everything. Finally, he agrees to sign a new will and a new trust, in particular to stop their constant harangues. A person must have the legal authority to complete or update legal documents such as wills, trusts, an advanced health policy, and other estate planning documents. Once that person does not have legal jurisdiction, the court must be asked to appoint a family member as guardian, or a guardian will be appointed by the court.
judicial of the named Surrogate Mother. See Public Health Act 2981. .
Dementia And Power Of Attorney: What To Do If Someone Cant Or Wont Sign A Poa
The number of Americans with different forms of dementia, such as Alzheimers disease, continues to grow at an alarming rate, according to the Alzheimers Association.
If youre caring for someone with dementia, you may face a legal catch-22 you hadnt anticipated: they cant or wont sign a power of attorney. Thats the legal document that allows someone else to make critical medical and financial decisions on their behalf when theyre not able to.
Dementia and power of attorney issues can cause unwanted complications in a persons care. Their inability or refusal to sign essential legal documents may leave family with limited options that may not be in the persons best interests.
Ron Anderson, an ARAG® network attorney, says There are common scenarios that we see in our practice regarding the impact of dementia on making important decisions and estate planning.
Find out about three common scenarios involving someone with dementia and their power of attorney, some of the options available in these situations, and what steps to take to avoid costly problems.
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Dementia And Signing Legal Documents
Dementia creates serious problems, no doubt. Among them is the compelling issue of who will make decisions for a person suffering from dementia, and who has the right to appoint such a decision-maker? What are the spouses rights? How about the children, individually? More importantly, what are the rights of the person suffering from dementia?
Dementia Does Not Mean Automatic Incapacity
Prevent challenges to legal documents arising from dementia
A diagnosis of dementia does not mean that the patient automatically lacks the ability to make decisions. Dementia is a progressive disease. It gets worse with time. A person with dementia may start out perfectly fine, with minor issues. Over time, they may lose the ability to make financial decisions, but be capable in other areas. Legally, such a person retains the right to make their own decisions until a court determines otherwise. However, a diagnosis of dementia should voluntarily energize the patient and the family to institute the legal arrangements which will be needed in the future. This will include the preparation of a Last Will and Testament, Power of Attorney and Living Will as needed.
Dementia and the Ability to Sign Legal Documents
Dementia and the Last Will and Testament
Dementia and the Durable Power of Attorney
Dementia and the Living Will
Prepare Now