Power of attorney (POA) allows a person to assign a representative, or representatives, to act on their behalf. This can benefit a person who can no longer act for themselves due to symptoms of dementia.
Dementia is the term for a series of symptoms that affect a person’s cognitive ability.
If a person has dementia, they may reach a point where they are unable to legally make decisions about their healthcare or finances.
Having a POA in place means that another person, or agent, can act on their behalf.
Read on to learn more about dementia and POA, including how to assign an agent and other legal documents to consider.
POA is a legal document that allows a person, or people, to act on behalf of another. This can be limited to specific areas, such as finance or healthcare. A person may also choose to have an agent that can make general decisions for them.
According to the Alzheimer’s Association, a POA for healthcare — also called an advance directive — allows those with dementia to name a person to make healthcare decisions if they are no longer able to do so. These include making decisions about:
- care facilities
- treatment options
- doctors and other healthcare professionals
- end-of-life care plans, such as do-not-resuscitate (DNR) instructions
It is important for a person with dementia to discuss their wishes with their chosen agent early on. This helps to ensure that everybody knows what the end-of-life plans are.
A person can choose anyone over 18 years old to be their agent, although it should be someone they trust. This may be a spouse, partner, family member, or a close friend.
If a person with dementia still has the legal capacity to understand their actions, they can create a POA.
A person can set up a POA in two different ways — they can have a POA that begins immediately or a POA that begins when they are unable to make their own decisions.
A person with dementia should create a durable POA. Durable POA’s remain in effect even when a person is no longer able to make their own decisions.
How to know if a person is unable to make these decisions
Mental capacity refers to whether a person is able to make important decisions. A person may not have the mental capacity to do this if they are unable to understand or retain the information they need to make the decision.
There may be an assessment of a person’s ability to make informed decisions before they can sign a POA. A person can do this using an assessment test, such as the Hopkins Competency Assessment Test (HCAT). The test results may go alongside a psychiatrist’s assessment of the person.
If a person has mid- to late-stage dementia, they may no longer be able to create a POA. The person’s family may have to attend court to appoint someone as a guardian or conservator.
A guardian or conservator can make decisions regarding:
- healthcare
- finances
- shelter
- safety
- food
The court can appoint guardians or conservatorships if a person with dementia can no longer make that decision themselves. This also happens if:
- a person has not written a POA
- the family is not able to agree on the care required
- there is no family
If a person wishes to acquire guardianship or conservatorship should speak with an elder care attorney who is familiar with the process in the state they live in.
A person can obtain POA documents from state government websites. POA laws can vary from state to state. A person should make sure they get the correct POA for where they live.
Certain states may require that a notary signs the POA. A notary is a person the state government has appointed to oversee the signing of important documents.
Healthcare POA documents may be available at hospitals or healthcare facilities. These POA forms allow the agent to make decisions about a person’s healthcare.
A person can also have an estate planning or elder law attorney write a POA. An attorney can make sure the document is completed correctly and has all the relevant information.
The American Bar Association also suggests that a person appoints witnesses when signing a POA. These witnesses may be required to testify that the person was of sound mind when they signed the legal document.
Providing a person has the mental capacity to make this decision, they can change their POA.
LawHelp.org advises that if a person changes their mind and wishes to change their POA, they should destroy the copy of the form and inform others about it. They should then create a new POA for healthcare.
For an agent to make a decision on someone else’s behalf, they must consider the person’s past and current wishes and ensure that they are acting in the person’s best interests.
If a person is concerned about a loved one and does not believe the agent is acting in the person’s best interests, they should speak with an elder law attorney. A lawyer may be able to revoke a POA if the current agent is misusing their POA.
If a person is not married to their partner, they can still assign them as an agent on their POA. However, when a person cannot choose an agent, one may be assigned to them.
This will likely be the person’s closest relative or relatives and recognized as the person’s guardian or guardians by the court and healthcare professionals.
If a person would like their partner to be their agent, they should set up a POA while they are able to do so. A person can request that their POA only come into effect once they are unable to make their own decisions.
Unmarried partners of people who are unable to make their own decisions can seek to be their agent in court. However, this can be difficult, expensive, and may not be successful.
If a person has received a diagnosis of dementia, they may want to prepare for their future healthcare and finances. A person can create a POA to ensure things are taken care of according to their wishes.
Once they have created a POA, they should keep it secure. An agent will have to produce the POA each time they want to do something on the other person’s behalf.
A person with dementia should also ensure that important documents are secure. These can include:
- bank statements
- insurance policies
- documents regarding property or vehicle ownership
- pension details
After receiving a dementia diagnosis, a person may also wish to consider creating the following legal documents:
Living will
A living will is a document that expresses a person’s preference for end-of-life care. This can include:
- whether they would like to have a feeding tube if they can no longer eat
- if they want DNR instructions put in place
- how and where they would like their burial
Will
Individuals can use a will to dictate how they would like their estate to be shared once they die. A person can name people in their will that they would like certain properties or items to go to.
Living trust
A living trust is similar to a will. However, a will is only usable once the person who wrote it has died. A living trust allows a person to share their assets while they are still alive, should they choose to.
It can also grant a person’s chosen trustees the ability to manage the trust if they become impaired. Any decisions by the trustees must benefit the trust owner.
A person may find the following resources beneficial:
- USLegal, which provides a list of the various POA documents needed for each state
- the Alzheimer’s Association’s Community Resource Finder
- the National Academy of Elder Law Attorneys’ online directory to help locate an elder law attorney
- LawHelp.org to learn about reduced-cost or free legal aid programs
A person can find more information about advance care planning for a person with dementia from the
POA is a document that allows a person to act on another’s behalf. This can be important for a person with dementia, as the condition can cause a person to become unable to make their own decisions regarding their healthcare and finances.
If a person receives a dementia diagnosis, they should consider getting a POA as soon as possible. Once a person is incapable of making decisions, they cannot assign an agent. Additionally, people who are not married may find it difficult to obtain guardianship if a person does not put a POA in place.
A person can obtain POA documents online, from healthcare facilities, or from an attorney. They should ensure they complete it in accordance with their state laws.