Power of Attorney for an Elderly Parent With Dementia

Power of Attorney (POA) documents help guarantee the wishes of the individual with dementia are followed as the disease advances and makes it possible for other individuals to make decisions on behalf of the individual when they no longer can.

Table of Contents

Power of attorney

Providing the individual that has dementia has legal mental ability (the capacity to comprehend and appreciate the outcomes of their actions) they should be involved in legal planning.

The power of attorney document enables a person that has dementia (referred to as the principal) to name another person (referred to as an agent), typically a spouse, domestic companion, trusted member of the family or trustworthy friend, in making financial and other decisions should the individual with dementia no longer is able make them on their own.

The agent needs to be chosen conscientiously; it is suggested that this individual have a in-depth conversation with the principal concerning what the responsibility consists of. Additionally, a successor agent and/or agents should be named should the original being unavailable or declining to serve.

POA documentation should be drafted so they are “durable,” meaning they are valid even following the principal being debilitated and is no longer able to make their own decisions.

The individual living with dementia retains the right to make their decisions providing they have legal capacity. POA does not grant the agent the authorization to overrule the principal’s decision-making until the individual with dementia is unable to legally do so.

Following the principal being unable to make their own decisions, the agent is then enabled to manage the principal’s income and assets. They are held accountable for acting in accordance with the principal’s wishes and in the individual’s best interest.

Power of attorney for health care

Understand local laws

Couples that are not in legally acknowledged relationships are particularly susceptible to restrictions in making decisions for one another and might be unable to receive information concerning a partner’s health condition if legal documents are not completely finished. Be sure you understand your state’s laws.

A POA for health care enables an individual with dementia to appoint a health care agent in making decisions concerning health care when they unable to. This kind of legal document is referred to as an “advance directive.”

These decisions include deciding:

Doctors and other healthcare providers
Kinds of treatments
Care institutions

For an individual in later stages of dementia, the health care agent is also able to make end of life decisions, like providing nutrition via a feeding tube or providing do not resuscitate (DNR) instructions for health care providers.

When time comes, these types of decisions can be challenging for families to decide on. Help bypass disagreements and stressed by having honest and open discussions early on so everyone is aware of what the end-of-life plans that are in place.

Living will

After legal documents are completed, the individual living with dementia, the caretaker or a trusted member of the family, the attorney and health care team need to all have copies.

Living wills are additionally a kind of advance directive that declares how a physically and/or mentally debilitated individual wants to be treated in specific medical circumstances.

In a living will, the individual may state, including, their wishes concerning artificial life support. This document usually comes into play after a doctor determines that an individual is debilitated and unable to convey their wishes concerning life-sustaining treatments.

Many states might require a specific form for a living will; in others, it can be created by the individual’s attorney. Check local laws.

A will

A will — in which is dissimilar than a living will — is documentation identifying who a n individual has chosen as:

Executor: the individual that is going to manage the estate.

Beneficiaries: the individuals that are going to receive the assets in the estate.

The executor appointed in the will won’t have any legal authority while the individual is still alive. A will only goes into effect when an individual passes away.

Wills can’t be used to convey healthcare preferences. On the other hand, it can provide peace of mind that an individual’s wishes are going to be fulfilled upon their passing. Individual living with dementia needs to have a signed will put in place sooner than later, while they are still able to make decisions. Make sure to check with local laws, as the legality of a will varies by each state.

Living trust

A living trust is one other way for the individual living with dementia to provide instructions for how their estate should be managed upon their passing.

Subject to state law and other individual situations, a living trust might enable an estate to bypass probate (the method used by the court for the distribution of property of an individual that has passed away). It may or may not offer tax benefits.

The individual that creates the trust (a grantor or trustor) names themselves (and possibly another individual) as trustee(s). When a single trustee is named, the trust document also needs to specify a successor trustee, that is going to take over when the initial trustee can’t serve because of debilitation or other reasoning. A trustee is typically an individual but may also be an institution, like a bank. The trustee is responsible for thoroughly handling the assets of the trust.

Guardianship/conservatorship

A guardian or conservator is designated by a court for making decisions concerning an individual’s care and property. Guardianship is typically considered when an individual with dementia is no longer able to provide their own care and either the family can’t agree on the kind of care required or they have no family.

Getting guardianship takes time. It entails enlisting the assistance of an attorney and testifying in court for guardianship proceedings. Additionally, a guardian makes health care and financial decisions, they also guarantee the individual’s daily needs for safety, food, housing and care are fulfilled. They are responsible to and overseen by the court.

The regulations surrounding guardianship differ by state. Any family thinking about guardianship or conservatorship needs to speak to an elder care attorney knowledgeable with the guardianship process in your state.

Source:

Legal documents. Alzheimer’s Disease and Dementia. (n.d.). Retrieved January 24, 2022, from https://www.alz.org/help-support/caregiving/financial-legal-planning/legal-documents

Choose the Right Attorney in Arizona

Regardless of the choice you make, it’s important you make the best choice for you when hiring an attorney. Remember: The decisions you make now can affect your future. Ultimately, choosing the best lawyer will depend on which lawyer feels best for you and your situation.

If you want to learn about Michelle N. Ogborne and see if she is the right attorney to represent you in your collaborative divorce in Arizona, contact us today!