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Do you have an elderly parent with dementia or signs of it? Seniors are at a higher risk of developing dementia than other categories, so it should not come as a surprise. However, you should prepare for the time when they are no longer able to manage their affairs and you need to assist them.  You can do that by setting up a durable power of attorney (POA).

Understanding Dementia and Its Impact on Decision-Making

Dementia is a progressive condition that impairs cognitive functions, affecting memory, reasoning, and communication abilities. As dementia advances, it can significantly hinder a person's capacity to make informed decisions about their health, finances, and legal matters. Understanding this progression is essential when considering the timing for setting up a power of attorney for an elderly parent, as it needs to be done while the individual still has the capacity to understand and consent to the arrangement. These are all key considerations that will help you care for your parent as they age.

Is a Power of Attorney Valid if Someone Has Dementia?

Looking for information on power of attorney dementia law? The first step in understanding how to get power of attorney over a parent with dementia is realizing you must initiate the process while they still have the capacity to understand and consent to the arrangement. The validity of the power of attorney depends on your parent’s ability to make informed decisions at the time of signing. To reinforce the legal standing, a medical evaluation by a doctor, particularly a neurologist or geriatrician specializing in dementia, should be conducted. This assessment verifies your parent's cognitive abilities and their capacity to grasp the implications of granting a power of attorney, serving as a vital safeguard against future legal challenges.

The Role of an Elder Law Attorney

An elder law attorney specializes in legal issues affecting the elderly, including estate planning, wills, and powers of attorney. They can offer guidance tailored to the unique aspects of elder law. Consulting an elder law attorney about power of attorney dementia law can also help you learn how to get POA for a parent with dementia. They ensure that all legal documents are properly drafted to reflect the principal’s wishes and comply with current state laws. They can also anticipate potential future issues, providing peace of mind for both the elder and their family.

What Is a Durable Power of Attorney?

This is a legally binding document through which an adult, in this case your parent, appoints you as their legal agent by their own free will. This formality will give you access to your parent’s affairs and assets, but also impose some restrictions.

You can gain access immediately, or only when your parent becomes incapacitated. Since your parent freely grants you the power of attorney, they can also revoke it.  Although there are other alternatives out there, like guardianship, a power of attorney is easier to obtain and more convenient.

Other Types of Power of Attorney

A power of attorney comes in various forms, each designed to suit different aspects of a person's life and needs. Understanding the different types can help you better understand power of attorney dementia law and its implications.

General Power of Attorney: This broad POA grants an agent the ability to handle a wide range of actions and decisions on the principal’s behalf, such as financial transactions, business dealings, and personal matters. It's typically used when the principal will be unavailable or unable to manage their affairs for a certain period.

Healthcare Power of Attorney: Also known as a healthcare proxy, this grants the agent authority specifically over medical decisions, distinct from the financial focus of a durable POA. It becomes active when the principal cannot make healthcare decisions due to incapacity.

Springing Power of Attorney: This POA becomes effective only under specific circumstances defined in advance, such as the principal’s incapacitation. It ensures the principal maintains control over their affairs until a certain triggering event occurs.

How to Set up a Power of Attorney for an Elderly Parent with Dementia

In order to set up a power of attorney, your parent needs to be of sound mind. This is the key to understanding how to get POA over a parent with dementia. They need to draft the power of attorney willingly and fully aware of the implications, without any duress or influence from you or anyone else.

Therefore, before you begin the procedures, it is important to discuss them with your parent. They need to accept the fact that, one day, they will no longer be able to make decisions and manage their assets and they need to appoint someone to do it for them.  

Some elders are reluctant to the idea or do not fully understand how a power of attorney works. To help them obtain the clarifications they need and make the best decisions, you should consider scheduling a consultation with an elder law attorney.

The latter can explain everything to your parent and help them draft the document. You and your parent will then need to sign the final version of the document in front of a notary public. You will also need a witness to attest that your parent is of sound mind.

Both signatures will be authenticated by the notary public to prevent fraud. To avoid conflicts of interest, it is advisable to choose a witness who cannot benefit from the power of attorney. Since your parent’s condition may incapacitate them at any time, it is important to act fast.

If you, the witness, or the notary public have doubts regarding your parent’s mental capacity, the best person to clarify the situation is your parent’s doctor or psychologist. The latter can evaluate your parent and confirm their mental capacity.

Legal Requirements and Considerations for Establishing a Power of Attorney

Establishing a power of attorney involves several legal prerequisites that vary by state. The key legal requirements include:

• The principal, or the person granting the authority, must be mentally competent at the time of signing, understanding the nature and implications of the POA document. 
• The POA must clearly state the scope of authority granted, whether it includes managing financial decisions, medical care, or both.
• The document must be notarized to affirm its authenticity and may also require witnesses, who should not be the same individuals granted the POA to avoid any conflict of interest. 

Regular reviews and updates of the POA are recommended to align with any changes in the principal’s wishes or circumstances, as well as to adhere to any new legal standards that may have been enacted.

Future Planning and Care Considerations

When setting up a power of attorney for an elderly parent with dementia, it’s crucial to think beyond the immediate legal arrangements to ensure comprehensive care and support for the future. Here are some key aspects to consider:

Advance Healthcare Directives: Besides a healthcare power of attorney, consider drafting an advance healthcare directive, including living wills, which outline your parent’s wishes regarding end-of-life care and critical medical interventions. This ensures that healthcare providers and family members adhere to the parent’s preferences in situations where they cannot communicate their decisions.

Long-Term Care Planning: Evaluate the potential need for long-term care facilities or in-home hospice care services that may become necessary as your parent’s condition progresses. Assess the financial implications and explore insurance options or Medicaid eligibility to cover these costs.

Estate Planning: Ensure all aspects of your parent’s estate are in order, including wills, trusts, and beneficiary designations. This not only helps in managing the estate after your parent's passing but also in simplifying the legal and financial processes during their later stages of life.

Community and Social Resources: Identify local community resources and support systems designed for the elderly with dementia. These might include daycare programs, support groups, or recreational activities tailored to their needs, providing social interaction and enhancing their quality of life.

Regular Reviews and Updates: As circumstances change, it's important to regularly review and update the care plans and legal documents. This ensures that all arrangements remain relevant and effective in meeting the evolving needs of your parent.

What to Do If Your Parent Refuses or Does Not Have the Capacity to Set Up a Power of Attorney?

If your parent is already incapacitated or refuses your assistance, you cannot set up a power of attorney. Trying to convince a reluctant parent to grant you power of attorney would qualify as influence and justify the invalidation of the document by a judge.

The only solution you have left is to file a guardianship petition with the court. There will be a hearing of which you will have to notify your parent, other family members, and any applicable agencies. You will have to prove to the court that your parent is incapacitated and you qualify to act as their guardian.

Depending on your parent’s level of incapacitation, the court will give you full (guardianship) or partial authority (conservatorship) to handle their affairs. It helps to have a care plan for your parent and witnesses to confirm your capacity to assist them. Any conflicts of interest could influence the decision of the judge.

Since guardianship petitions take time and effort to be resolved, it is best to benefit from the assistance of an elder care lawyer. The latter can handle all procedures and help you secure a favorable verdict with minimum effort.

Do you have an elderly parent with dementia or signs of it? Seniors are at a higher risk of developing dementia than other categories, so it should not come as a surprise. However, you should prepare for the time when they are no longer able to manage their affairs and you need to assist them. Aside from researching and deciding on which one of the emergency alert systems you want to install in their home, it’s equally important to set up a power of attorney for them. 

At JacksonWhite Attorneys at Law, we are a team of Elder Law attorneys, benefit processors, and social workers dedicated to help Arizona elders and their loved ones benefit from the care and financial support they need.

Liz S. Coyle is the Director of Client Services for JacksonWhite Attorneys at Law. She also serves as a paralegal for the Family Law Department. She is responsible for internal and external communications for the firm.