How To Get Power Of Attorney For An Elderly Parent With Dementia
It is very common for family members to ignore or dismiss the early signs of dementia or Alzheimers as simply a part of aging. Unfortunately, this makes it very difficult to obtain a Power of Attorney if the disease has progressed.
If your elderly parent wrote a living will granting you a Durable Power of Attorney, then its well taken care of but if they did not and have now been diagnosed with dementia or Alzheimers, then any legal documents that they sign are invalidated.
How To Get Power Of Attorney For Someone With Dementia
If the person diagnosed with dementia has not lost mental capacity, they will be able to make a Lasting Power of Attorney.; This should be done with a lawyer, who can offer proper advice and attest that the person understands the decision they are making.
There are two types of Lasting Power of Attorney one for decisions regarding property and finances, and the other for decisions regarding health and welfare. These allow you to specify different people to handle each type of decision although in practice many people choose the same people for both.
Once the Lasting Powers of Attorney have been drawn up, they will be registered with the Office of the Public Guardian. They cannot be used until they are registered, although they will still be valid once registered even if the person who made them loses mental capacity during the registration process.
Once they have been registered, the property and welfare Lasting Power of Attorney can be used at any time that the person who made it chooses, even if they have not lost mental capacity. The health and welfare Lasting Power of Attorney can only be used once the; person who made it has lost mental capacity.
When A Person With Dementia Has Lost Capacity
If the person diagnosed with dementia has no power of attorney and they have already lost mental capacity, it will not be possible to make one now. Instead, you will need to apply to the Court of Protection for a Deputyship Order. It is advisable to instruct a lawyer to help you with the process, as it is both complicated, expensive and sometimes intrusive.
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Money Matters: How To Help A Person With Dementia
Problems managing money may be one of the first noticeable signs of dementia. To provide support, while also respecting the persons independence, a family member or trusted friend can help:
- Watch for signs of money problems Trouble paying for a purchase or a pile of unopened bills may indicate money issues. Start a conversation about available services to help older adults with their expenses. Giving the person small amounts of cash to have on hand and limiting credit cards may help manage spending.
- Set up automated bill payments Arrange for utilities, mortgage, rent, or other expenses to be paid through automatic deductions from a bank account. This will make sure that bills are paid correctly and on time.
- Protect against scams or fraud To lower the risk of telemarketing schemes, help place the persons phone number on the National Do Not Call Registry. Consider registering the person for fraud alerts through their bank, credit card company, a national credit bureau or other credit monitoring service. Learn more about common scams and frauds.
As the disease progresses, a family member or trustee can take additional steps to:
A Beginners Guide To Power Of Attorney For Elderly Parents
As a parent or relative ages, it can become a struggle to balance respect for their autonomy and independence with protecting them from negative consequences of mental or physical health problems. A power of attorney is one way to ensure that no matter what happens down the road, your loved ones wishes will be prioritized.
A power of attorney is one of the most;important documents;for elderly parents and grandparents, but its one that many families havent prepared. Fortunately, setting up a power of attorney is fairly simple, and it can save you from future complications. Executing a power of attorney is an important step to take sooner rather than later, even if your aging loved one is still physically and cognitively healthy.
Learn about types of power of attorney, common reasons why seniors need them, and how to have a power of attorney executed for your aging relative.
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Scenario : The Person Is Mentally Competent But Fails Or Refuses To Sign A Power Of Attorney
In this scenario, the person with dementia is still able to make sound decisions, but hasnt done any estate planning or has refused to set up any powers of attorney or co-owned financial accounts.
At this point, says Anderson, the person is still entitled to make decisions on their own regarding finances and health care.
They could sign financial and health care powers of attorney to designate a trusted person to make these decisions for them. Or, they could choose to make no estate planning decisions at all.
This can create a very difficult situation for everyone involved.
Option 1: Suggest standby conservatorship and/or guardianship insteadOne option is to have an open, honest discussion with the person. Emphasize the importance of having a financial or health care power of attorney and the negative consequences of not having any powers of attorney in place.
If the person still refuses to sign a power of attorney, you could suggest that they consider signing standby conservatorship and/or guardianship papers instead.
These documents would allow them to choose who they would want to make financial or healthcare decisions for them. Later, these documents would allow the court to hold a voluntary proceeding.
Doing this would be simpler, easier, and cheaper than if an involuntary guardianship or conservatorship were required.
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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Mind All The Details When Drafting The Paperwork
This step will be much easier if you’ve hired a lawyer. After all, trying to get everything right on a generic power of attorney form that you’ve downloaded from the Internet or bought in a store can sometimes be difficult or impossible. And it is critical that you get everything right. Even a seemingly small spelling error in someone’s name can make the document useless.
At its most basic, a POA document must name the principal, at least one agent, and the actions that the agent is allowed to carry out. The document also needs to specify any durable or springing provisions. And your state may require additional kinds of information to be included.
Beyond the basics, it’s a good idea to describe each type of action in as much detail as possible. For example, rather than simply saying that the agent has the authority to manage the principal’s finances, stipulate exactly what those powers are, such as the ability to access and use money from particular bank accounts in order to pay bills or contribute to investments. Whatever your parent wants you or another agent to do should be explicitly described.
In addition, it’s smart to specify how your parent’s incapacity will be determined. Many generic POA forms include this type of language, but it is often vague or inappropriate for the complex realities that often crop up. For example, it’s wise to include language that excludes temporary delirium from being considered an incapacity issue.
Medical Power Of Attorney
A medical power of attorney also known as a health care proxy or health care agent is someone who makes health care decisions for the principal if theyre incapacitated. Its their job to ensure a seniors wishes, as stated in their advanced directive or living will, are upheld in case of end-of-life care.
A medical POA only goes into effect when a senior is deemed incapacitated. The agent named is responsible for ensuring health providers follow instructions from the seniors medical power of attorney documents. They also have authority over:
- Medical treatment
- Selection of health care or senior living facilities
- Release of medical records
Can;a medical power of attorney override a spouse;who wishes to make;decisions for;an incapacitated individual? Yes, a principal can choose almost any legal adult to act as their agent for a medical POA, and if the spouse is not the agent, their wishes are secondary to the agents instructions.
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.
What Is The Mental Capacity Act
The Mental Capacity Act is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.
Your doctor, social worker or other medical professional can help assess mental capacity.
If someone lacks capacity to make a decision, which needs to be made for them, the MCA states the decision must be in their best interests.
The MCA has a checklist to help decide what’s in a person’s best interests.
This is why it’s important to put plans in place as soon as possible.
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Talk To Your Parent And Other Siblings
Before making this decision, you may want to talk with the rest of your family about advance planning. One of your siblings might be willing to be a co-agent on a power of attorney with you. This has several advantages. If you are unable to make decisions, you have a backup. Also, having someone to consult with on decisions can provide you with much-needed support.
Your parent may not understand what your intention is, which could be problematic. You will have to assess their level of comprehension and avoid pressuring them to make a decision.
If your parent states they want a different sibling to have power of attorney, that is their right. Suspicion and paranoia are sometimes symptoms of dementia, and this might sabotage the process or make it impossible to reach an agreement.
Your parent might also keep procrastinating, saying that they will get to it eventually. Your parent with dementia may also refuse your help. It isnt easy having to think about needing the help of your children to manage your life. An open and honest discussion about the reasons for needing these documents can help. Let your parent know that this is something that will make your life easier in the end. Explain that without legal authority there will be no one to ensure that their wishes are carried out.
When Should Your Aging Parent Set Up Their Power Of Attorney
The truth is that all parents should speak with an attorney and have a Will, a Living Will and a POA written up as soon as they are parents. In most states, anyone 18 years and older can have these documents created.
Some parents take the extra step to make sure that they have these documents written while they are pregnant, just to assure that if anything happens their child will be taken care of.
This can easily save the family a good amount of money and precious time if these legal matters are all taken care of.
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What Is The Difference Between Competency And Capacity
Having competence is being able to effectively make informed decisions relative to a specific issue. For instance, someone may be competent in making decisions regarding their medical care, yet lack competence in another area, such as representing themselves in a court of law.
Competence is a legal definition, not a medical one. All individuals are presumed competent unless proven otherwise.
Capacity is the psychological capability to assess information rationally and make informed decisions. Capacity is determined by a medical professional, not by a court of law.
How To Get A Power Of Attorney For Elderly Parents
Whether you can obtain a power of attorney for a senior loved one depends on their mental status. Legally, they must be “of sound mind” to grant a power of attorney. While this isnt a difficult standard for a healthy adult to meet, it can be tough for someone with dementia.
If your aging family member is considered mentally competent, a qualified attorney can work with your family to create these documents in very little time.
If your senior loved ones cognitive losses prevent them from meeting this standard, however, the alternative is usually to petition your local probate court to become their legal guardian or have a conservatorship granted. Unless it is a life-threatening situation, this process will take extra time.
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Do I Have To Pay My Attorney
In some provinces, unless you state otherwise in the power of attorney, a person appointed under a continuing power of attorney may have a right to be paid. Before you sign any documents, it is a good idea to have a conversation with the person you choose as your attorney regarding compensation for their work. You should include this information in your power of attorney document.
You may also consider appointing a trust company or a legal or financial professional with the skills to manage finances and property. You will probably need to pay fees for this service. Also, these options may only be available to you if your property is over a certain value.
When Guardianship Is Required
The elderly parent who lives alone in an unsafe condition but who refuses assistance is an archetypal character in the world of the senior advocacy. For instance, imagine a senior named Elda who has Alzheimers disease:
Eldas grown children became concerned because shes living alone with Advanced Alzheimers. Elda recently left the stove on again and started a minor, but very smokey kitchen fire. Her children unplugged the oven, so shes been eating generic goldfish crackers and Pepsi . She has sundowners and often wanders the not-so-safe neighborhood at night looking for a corner-store that closed 20 years ago. She has lost $20,000 and counting to Nigerian email scammers. And she recently fell, bruising her hip badly after tripping on a box of old newspapers in her cluttered apartment. Her children know shes a disaster waiting to happen.
If Elda continues to refuse assistance in this situation, the best option for her family would be to seek guardianship.
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Power Of Attorney Delegation Mid
If there is no power of attorney designation, and the older adult is further along in the diseases process, things can get a bit more complicated. If an older adult is unable to understand the power of attorney document and process, the family will need to enlist the help of the local court.
A judge can review the case and grant someone in the family the title of conservator. A conservatorship allows the designee named by the court to make decisions about the persons finances. A guardianship allows the designee named by the court to make decisions about the persons healthcare. This is cumbersome, certainly, but it is necessary in order to advocate for your loved one and their wishes.
Dementia makes life a bit more complicated for older adults and their family members. Learn more about challenges you may face now and in the future, along with realistic solutions that will help you navigate them with confidence, by downloading our free resource, The Caregivers Complete Guide to Alzheimers and Dementia Care.