The Effect Of Alzheimers On Legal Documents
To be clear, Alzheimers greatly affects living wills and a health care power of attorney, as:
- Neither an attorney nor a notary can ethically prepare or notarize a living will or health care power of attorney for an individual that does not understand the nature of the documents at issue
- Only the person with Alzheimers can sign the document pertaining to him or her
This creates a challenging situation for the parent or senior loved one with the disease and his or her family who needs the documents. I am always saddened when an adult child or spouse comes to my office asking for assistance with a loved one with late stage Alzheimers. Sometimes the parent with Alzheimers is present, but it is clear that he or she does not understand why they are in my office, let alone understand a complicated legal document. Sometimes the senior loved one with Alzheimers doesnt even come. I am forced to answer that, unfortunately, it is too late.
Potential Downsides To Power Of Attorney
There are many reasons why a POA is useful for older adults and their families, but theyre not without downsides. A POA gives someone control over your parents affairs, which can leave them open to abuse or financial exploitation. Its important to remember that the agent is a fiduciary. They can face harsh penalties if they dont act in your parents best interests. Your parent can also revoke a POA at any time as long as they arent incapacitated. Despite these safeguards, you should always appoint someone your parent trusts to act as their agent.
Appointing a power of attorney can also cause problems within families. People may be upset that they werent appointed as the agent. There may also be disagreements about the choices the agent makes. To help avoid these problems parents should talk to all relevant family members about their wishes and why they chose their power of attorney.
Ordinary Power Of Attorney For A Person With Dementia
Ordinary Power of Attorney enables your parent to assign somebody else temporary powers over some finances. This could be useful, for example, during a stint in hospital which will ensure that bills can continue to be paid etc.
However, setting up a Lasting Power of Attorney tends to be more useful for a person with dementia, because there will be an inevitable decline in mental capacity over time.
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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.
Power Of Attorney Documents Often Fall Short For Individuals With Alzheimers Or Dementia
Any estate planning or elder law attorney will tell you how important it is to have power of attorney documents, but they wont always tell you that these documents can still fall shortespecially for individuals with Alzheimers disease or dementia.
A Power of Attorney is a document that gives someone the legal authority to make decisions for you if you cannot make decisions for yourself.
A Health Care Power of Attorney allows someone to make decisions for you concerning doctors, hospitals, medication, etc.
A Durable Power of Attorney allows someone to make legal and financial decisions on your behalf.
If you do not have a Durable Power of Attorney and you experience a cognitive decline and need a trusted family member or friend to help you manage your finances, then the next step is usually Adult Guardianship. A family member, such as your spouse or an adult child, will file a court proceeding asking the court to declare you legally unfit to manage your own finances. Your family member will then ask the court to appoint them as your Guardian to manage your affairs on your behalf. Its often referred to as living probate because just like probateits time-consuming, stressful, and it can be costly.
If you have a Durable Power of Attorney, the agent that you appointed in the document can help you manage your financial affairs without needing court intervention first.
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When Is The Right Time To Set Up A Power Of Attorney
A seniors wishes may not be known or respected without legal documentation, so its important to discuss a power of attorney with aging relatives.
Experts recommend establishing a power of attorney for an elderly parent before they need it especially if theyve received a concerning diagnosis. Patients diagnosed with early-stage dementia should set up a power of attorney before the disease progresses. If an aging relative is determined no longer competent to make their own decisions and doesnt have a POA, family members face a complicated, expensive legal process to set up a conservatorship or guardianship. This is also when the difference between a general power of attorney and durable power of attorney becomes critical.
General Or Ordinary Power Of Attorney
This type of POA agreement usually takes effect immediately and grants an agent the authority to handle a broad range of responsibilities. However, an ordinary POA will generally terminate when the principal becomes legally incapacitated. So your parent may use it to grant you a comprehensive set of powers to help out while he or she is away from home for extended periods of time or needs your assistance due to other reasons, such as physical illness or disability.
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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.
The Steps To Take If Your Elderly Parent Does Not Have A Power Of Attorney
So, if your parent has been diagnosed with dementia or Alzheimers or any other illness that has left them cognitively incapacitated and they have not written a Power of Attorney you can follow these steps below.
Step One Speak with an elder law attorney about what is needed to be done so that you can take over your parents financial and/or medical matters for them.
Step Two The attorney may recommend either a conservatorship and/or a guardianship.
Conservatorship is used to give someone full control over another persons financial matters.
Guardianship is used to give someone full control over their care.
As I mentioned earlier obtaining these can be expensive and time consuming.
So we highly recommend that you go through our Legal Checklist for Aging Parents. It will give you all the information you need to make sure that all your legal documents are properly arranged. This will help your family tremendously.
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Scenario : Its Too Late For The Person To Sign A Power Of Attorney
Often, by the time a caregiver realizes that their older adult has diminished mental capacity, theyre no longer able to sign the necessary legal documents.
Anderson says, If a person gets to the point where they dont know who their family members are, what assets they own, and who they would want to make decisions for them regarding their assets and health care matters, then they arent mentally competent to sign a legal document such as a health care power of attorney or financial power of attorney.
In this case, Anderson advises, there is very little that can be done for the person except applying to the court for a formal conservatorship or guardianship.
A conservatorship is when the court appoints a person to have control over a persons finances. A guardianship is when a person is appointed by a court to have control over the care, comfort, and maintenance of another person.
Unfortunately, legal proceedings for these types of conservatorships and guardianships are usually time-consuming and expensive due to legal fees, agents fees, and court costs.
Option: Use married status to keep access to co-owned assetsAnderson points out one solution that could prevent these problems.
If the person is married and, as a couple, they made earlier decisions to hold their assets as co-owners, then the mentally competent spouse can still access the family checking accounts, savings accounts, or other assets without the necessity of going to court for a conservatorship.
Help Your Parent Choose The Best Course Of Action
Instead of getting your parent to rush into an agreement, allow ample time for him or her to reflect on the various options. Always remember that a POA agreement can be challenged or rendered invalid if it’s determined that your parent was coerced into signing it. Ultimately, this decision is your parent’s to make, not yours. Your job is to help him or her make a well-informed choice.
You can, of course, remind your parent of why appointing powers of attorney may be in his or her best interests. For example, you can ask thought-provoking questions:
Be supportive. Try to see everything through your parent’s eyes by putting aside your own wishes and biases. Give your parent the dignity and independence that he or she deserves .
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Order To Refuse Cpr For People With Dementia
All people have the right to refuse CPR if they do not want it, using a DNACPR. This stands for Do Not Attempt Cardiopulmonary Resuscitation, and it can be included within an Advance Decision form.
DNACPR means if someones heart or breathing stops, the healthcare professionals will not perform CPR on them. A DNACPR decision is made by the individual AND/OR by the healthcare professionals looking after them.
Having a written document outlining whether or not your parent with dementia would like to receive CPR in such a situation will make it easier for the decision that they want to be made.
How To Handle Obtaining Power Of Attorney For Parents
An individual usually becomes an agent as either their own parents, children, spouse, or grandchildren. When they are raised as an heir to their family estate, they might become legally entitled to act on their parents’ behalf.
When thinking about how to handle the process of obtaining a Power of Attorney for your parents, it is important to consider both what you and your family need and want from them and what risks can be mitigated by having them in this kind of position. The most common reason people want a POA is that they have the power to manage their finances.
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Legal Issues: Caring For Parents With Dementia
Created by FindLaw’s team of legal writers and editors| Last updated May 17, 2021
Alzheimer’s disease, Parkinson’s disease, and other disorders that cause dementia have become more common among aging adults. While any form of memory loss is emotionally devastating for everyone involved, dementia can present extraordinary challenges for older adults and their families when drafting a will, making health care decisions, and taking care of other legal and financial matters.
Moreover, it is often the children of dementia-affected adults who end up making decisions on their behalf. But it is important for family members to understand the legal and financial implications of their actions.
The following factors should be considered when assessing your loved one’s mental capacity for making important legal, financial, and health-related decisions.
Power Of Attorney Responsibilities
Being appointed as a parents agent comes with many responsibilities. In essence, you are legally bound to act in the best interest of your mother or fathers financial and medical health. However, you are also legally bound to fulfill their wishes, even if those wishes are incongruent with your own.
The duties of an agent will be dictated by the power of attorney document. It is best if these expectations are discussed and later clarified in writing. For example, a parent may expect their daughter to file taxes, buy and sell real estate, monitor bank accounts or pay monthly bills. A parent may also expect their daughter to make decisions regarding long-term care, medical procedures and even whether or not life support should be pursued.
Serving as an agent should not be taken lightly agents can be sued for breaching their fiduciary responsibilities. Therefore, it is important to understand the principals wishes and keep accurate records of financial transactions.
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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.
Make Sure Your Parent Knows What They Are Signing
If your parents decision-making abilities are in question, so will any legal document they sign. That is why it is so important to have advance planning documents in place before they are needed. Otherwise, anyone could question the legality of a power of attorney document signed by someone who is incapacitated.
If you think your parent may not be able to understand what they are signing, consider guardianship as an option. One possible path to making this decision is to have an evaluation of your parent completed and then getting a letter of competency from a physician. Then you will have a medical opinion to back up your claim and have a better understanding of their prognosis.
Your parent may have dementia but retain capacity and refuse to sign a power of attorney document. In this case, there is not much you can do except keep trying and if necessary wait until incapacity is reached. You can then petition the court for guardianship and conservatorship.
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Tip: Get Permission For Caregiver Communication In Advance
Get permission in advance from the person with dementia to have his or her doctor and lawyer talk with a caregiver as needed. Advance permission can also be provided to others, such as Medicare or a credit card company, bank, or financial advisor. This can help with questions about care, a bill, or a health insurance claim. Without consent, the caregiver may not be able to get needed information.
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.
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What Happens If The Parent Has More Advanced Dementia
Is your parent already suffering from mid- or late-stage dementia? In that case, it may be too late to have them sign a power of attorney.
If their incapacity is not picked up beforehand, a notary will refuse to notarize a POA if the principal isnt capable of understanding what they are signing. In most states, the absence of notarization on a POA will render it invalid.
In case your parent is already incapacitated, your only recourse may be to approach the local court for help. Your parents case will be reviewed by a judge who may award a conservatorship, allowing the conservator to make financial decisions on the patients behalf.